Effect given to the recommendations of the committee and the Governing Body - Report No 320, March 2000

Case No 1942 (China - Hong Kong Special Administrative Region) - Complaint date: 01-NOV-97 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 44. The Committee examined this case at its November 1999 meeting (see 318th Report, paras. 26 to 35) on which occasion it had requested the Government to: (a) take steps to repeal section 5 of the Employment and Labour Relations (Miscellaneous Amendments) Ordinance, 1997 (ELRO), which restricted union office to persons actually employed in the trade, industry or occupation of the trade union concerned; (b) take the necessary steps to repeal: (i) section 8 of the ELRO which subjected the use of union funds in certain instances to the approval of the Chief Executive of Hong Kong; and (ii) section 9 of the ELRO which instituted a blanket prohibition on the use of union funds for any political purpose; (c) review the Employment (Amendment) (No. 3) Ordinance, 1997, with a view to ensuring that provision was made in legislation for: (i) protection against all acts of anti-union discrimination; and (ii) the possibility of the right to reinstatement which would not be conditional upon the prior mutual consent there
   • to of both the employer and the employee concerned; (d) give serious consideration to the adoption of legislative provisions laying down objective procedures for determining the representative status of trade unions for collective bargaining purposes which respected freedom of association principles.
2. 45. In a communication dated 14 January 2000, the Government refers to the above recommendations of the Committee. Concerning the issue of restrictions on the eligibility of union officials to stand for office, the Government points out that section 17(2) of the Trade Union Ordinance, which provides that persons who are or who have been engaged or employed in the trade, industry or occupation of the trade union concerned can become officers of the union, only seeks to ensure that officers of a union should generally have some experience in the union concerned so that they can know the needs of union members better. In addition, any person who is or has not been engaged or employed in the trade, industry or occupation of the trade union concerned can become an officer with the approval of the Registrar of Trade Unions under section 17(2). So far, all applications for consent have been approved. The Government is nevertheless actively reviewing the occupational requirement of trade union officers and is in the
   • process of consulting the Labour Advisory Board (LAB) on the outcome of the review.
3. 46. In this regard, the Committee once again recalls that the determination of conditions of eligibility of union office is a matter that should be left to the discretion of union by-laws and the public authorities should refrain from any intervention which might impair the exercise of this right by trade union organizations. Noting that the Government has reviewed the occupational requirement of trade union officers, the Committee once again requests the Government to repeal section 5 of the Employment and Labour Relations (Miscellaneous Amendments) Ordinance, 1997 (ELRO), which restricts union office to persons actually or previously employed in the trade, industry or occupation of the trade union concerned.
4. 47. With regard to government restrictions on the use of union funds, the Government states that the current provisions of the Trade Union Ordinance on the use of union funds seek to encourage the development of healthy and responsible trade unionism. Their coverage is so broad that in general trade unions are free to administer their funds for advancing the social and economic interests of their members. The Government nevertheless indicates that it has completed a review of the provisions on union funds and is in the process of consulting the Labour Advisory Board on the outcome of the review.
5. 48. Recalling that section 8 of the ELRO subjects financial contributions to trade unions or similar organizations abroad as well as the use of union funds for any other purposes than those enumerated in section 33(1) of the Trade Union Ordinance of 1989 to the "approval of the Chief Executive", the Committee would reiterate that provisions which give authorities the right to restrict the freedom of a trade union to administer and utilize its funds as it wishes for normal and lawful trade union purposes are incompatible with the principles of freedom of association. Similarly, recalling that section 9 of the ELRO contains a blanket prohibition on the use of union funds for any political purpose, the Committee would once again remind the Government that provisions imposing a general prohibition on political activities by trade unions for the promotion of their specific objectives are contrary to the principles of freedom of association. Noting the Government's statement that it has completed a review of the provisions on union funds, the Committee once again requests the Government to take steps to repeal sections 8 and 9 of the ELRO.
6. 49. With regard to the issue of protection against acts of anti-union discrimination, the Government indicates that section 21B(1) of the Employment Ordinance provides for the right of employees to trade union membership and to participate in union activities. It also protects an employee against discriminatory acts, including but not confined to dismissals, during employment. Under section 21B(2) of the Employment Ordinance, an employer who dismisses, prevents, deters, penalizes, or discriminates against an employee for exercising his trade union rights commits an offence and is liable, on conviction, to a fine of HK$100,000. Moreover, Part VIA of the Employment Ordinance provides for compensation or reinstatement subject to the prior mutual consent of the employer and employee concerned, for unlawful dismissals, including dismissals on grounds of union discrimination. The Government indicates that it has now completed a review on the requirement of mutual consent for reinstatement and is in the process of c
   • onsulting the Labour Advisory Board on the outcome of the review.
7. 50. As regards the issue of the scope of protection against acts of anti-union discrimination, the Committee notes that section 21B(1) and (2) of the Employment Ordinance provides for protection against dismissal and other discriminatory acts during employment. As regards the requirement of prior mutual consent in the absence of which a worker may not be reinstated but instead awarded compensation, the Committee does not consider that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker's trade union membership or activities. The Committee therefore once again requests the Government to review the Employment (Amendment) (No. 3) Ordinance, 1997, with a view to ensuring that provision is made in the legislation for the possibility of the right to rein
   • statement which would not be conditional upon the prior mutual consent of both the employer and the employee concerned.
8. 51. Finally, with regard to the issue of promoting collective bargaining through legislation, the Government points out that it firmly believes in the voluntary nature of collective bargaining and has all along been promoting voluntary negotiation between employees and employers or their respective organizations. This approach has served Hong Kong well as evidenced by its harmonious labour relations over the years. The results of the motion debates in the Legislative Council in 1998 and 1999 illustrate clearly that there is no consensus in the community on the issue of introducing collective bargaining and related matters by legislation.
9. 52. The Committee recalls that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent. Since the Committee had previously considered that the case at hand furnished a clear illustration of the appropriateness of adopting provisions laying down objective procedures for determining the representative status of trade unions for collective bargaining purposes, the Committee once again requests the Government to give serious consideration to the adoption of appropriate provisions which respect freedom of association principles.
10. 53. The Committee requests the Government to keep it informed of measures taken to give effect to its recommendations.