Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) - China - Hong Kong Special Administrative Region (Ratification: 1997)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

Articles 2(1) and 3(1) of the Convention. Effective tripartite consultations. Election of representatives of the social partners. The Committee has been requesting for some years that the Government and the social partners promote and strengthen tripartism and social dialogue in order to facilitate the operation of the procedures governing effective tripartite consultations, including ensuring the meaningful participation of the Hong Kong Confederation of Trade Unions (HKCTU) in the consultation process. In its previous comments, the Committee expressed its concern that there is a risk that the HKCTU may have been excluded from meaningful participation in the consultative process among the most representative organizations of workers in the Labour Advisory Board (LAB), as a result of the electoral system in place in the Special Administrative Region. In this context, the Committee recalls the previous observations of the HKCTU, which expressed concern in relation to the electoral system for representation on the LAB, the designated tripartite body for tripartite consultations for purposes of the Convention. In its observations, the HKCTU indicated that the composition of the LAB includes six workers’ representatives, five of whom are elected by registered trade unions, with a sixth representative appointed ad personam by the Government. It noted that, according to the current system, union votes are given equal weight regardless of size of membership, according to the principle of “one union, one vote”. Moreover, the electoral system allows voters to vote for a slate of five candidates, as a block, in one ballot. As a result, if the slate of five candidates receives more than half of the votes, the slate would win all five seats. In its observations, the HKCTU maintained that this electoral system was unjust and had effectively prevented it from being elected to the LAB, despite its status as the second largest trade union confederation. The Committee notes the Government’s indication that its position in respect of the application of the Convention remains unchanged. The Committee notes that, in its report, the Government once again reiterates its commitment to ensuring effective tripartite consultations through the LAB, as well as reiterating information previously provided concerning its electoral system. The Government reiterates that, in the Hong Kong Special Administrative Region (HKSAR), every workers’ union is free either to affiliate to one or more trade union groups or to remain unaffiliated. The Government notes that more than half of the registered workers’ unions are not affiliated to any major trade union group and that, since all workers’ unions may exercise their free choice in the election, no trade union group can dictate the election results. It adds that all registered workers’ unions are entitled to exercise their free choice in the election and that there is no question of any particular workers’ union being excluded from the election. The Government reiterates its commitment to continuing to ensure that every registered trade union, including those affiliated to the HKCTU, enjoys the same right as other registered trade unions to nominate candidates and to vote in the election of workers’ representatives of the LAB. Nevertheless, the Government reiterates that it would be improper and inappropriate if the system of electing workers’ representatives to the LAB were to be changed for the advantage of a particular organization. In this context, the Committee notes that the latest election of workers’ representatives in the LAB was held in November 2018. The Government indicates that 12 nominations were received, which included four incumbent workers’ representatives and that, after the trade unions cast their votes by secret ballot, three incumbent workers’ representatives and two other candidates were elected. The HKCTU was not elected to the LAB. The Committee recalls that the term “most representative organizations of employers and workers”, as provided for in Article 1 of the Convention, “does not mean only the largest organization of employers and the largest organization of workers”. In its 2000 General Survey on tripartite consultation, paragraph 34, the Committee refers to Advisory Opinion No. 1 of the Permanent Court of International Justice, dated 31 July 1922, in which the Court established that the use of the plural of the term “organizations” in Article 389 of the Treaty of Versailles referred to both organizations of employers and those of workers. Based on this opinion, the General Survey clarified that the term “most representative organizations of employers and workers” does not mean only the largest such organization. If in a particular country there are two or more organizations of employers or workers which represent a significant body of opinion, even though one of them may be larger than the others, they may all be considered to be “most representative organizations” for the purpose of the Convention. In such cases, governments should endeavour to secure an agreement of all the organizations concerned in establishing the tripartite procedures (2000 General Survey on tripartite consultation, paragraph 34). The Committee therefore once again urges the Government to make every effort, together with the social partners, to ensure that tripartism and social dialogue are promoted and strengthened so as to facilitate the operation of procedures that ensure effective tripartite consultations that include the most representative organizations of employers and workers, as required under Articles 1 and 2 of the Convention, including by encouraging the Labour Advisory Board to amend its current electoral system. The Committee also once again requests the Government to report on progress made in ensuring the HKCTU’s meaningful participation in the consultative process among the most representative organizations of workers.

Article 5(1). Effective tripartite consultations. The Government indicates that, during the reporting period, the LAB’s Committee on the Implementation of International Labour Standards (CIILS) was consulted on all reports to be submitted under article 22 of the ILO Constitution. The procedures for preparing these reports and copies of the reports were communicated to all members of the LAB. In 2018, members of the CIILS met with officials from the Transport and Housing Bureau and the Marine Department of the HKSAR Government and were informed of progress with regard to the application of the Maritime Labour Convention, 2006 (MLC, 2006), in the HKSAR. The Committee notes the report of the LAB for 2017–18, communicated together with the Government’s report. The Committee requests the Government to continue to provide detailed and up-to-date information on the content and outcome of the consultations held on all of the matters relative to international labour standards as required under Article 5(1)(a)–(e) of the Convention.

In the context of the global COVID-19 pandemic, the Committee recalls the comprehensive guidance provided by international labour standards. It encourages the Government to engage in tripartite consultation and social dialogue more broadly as a solid foundation for developing and implementing effective responses to the profound socio-economic impacts of the pandemic. The Committee invites the Government to provide updated information in its next report on measures taken in this respect, in accordance with the guidance provided in Article 4 of the Convention as well as Paragraphs 3 and 4 of Recommendation No. 152, including with regard to steps taken to build the capacity of the tripartite constituents and strengthen mechanisms and procedures, as well as challenges and good practices identified.