Effect given to the recommendations of the committee and the Governing Body - Report No 324, March 2001

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. 30. The Committee examined this case at its November 1998, November 1999 and March 2000 meetings [see respectively: 311th Report, paras. 235-271; 318th Report, paras. 26-34; and 320th Report, paras. 44-53] and, on that last occasion, made the following recommendations:
   • - as regards conditions of eligibility to union office, the Committee once again requested 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 (paragraph 46);
   • - as regards restrictions on financial contributions to trade unions and on the use of union funds, the Committee once again requested the Government to repeal sections 8 and 9 of the ELRO (paragraph 48);
   • - as regards the scope of protection against acts of anti-union discrimination, the Committee once again requested the Government to review the Employment (Amendment) (No. 3) Ordinance, 1997, to ensure that the right of reinstatement would not be conditional upon the prior mutual consent of both the employer and the employee concerned (paragraph 50);
   • - concerning the right to bargain freely with employers, the Committee once again requested the Government seriously to consider adopting appropriate provisions with respect to freedom of association principles (paragraph 52).
2. 31. In its communication of 20 October 2000, the Government states as regards the conditions of eligibility to trade union office that, under section 17(2) of the Trade Union Ordinance (TUO), a person who has some experience in a trade, industry or occupation with which a trade union is directly concerned could become an officer of the union; flexibility is built into this section for persons from other trades to become union officers with the consent of the Registrar of Trade Unions. Since 1980, only 41 applicants from 20 registered trade unions have asked for the Registrar's consent under section 17(2) of the TUO. This reflects the overwhelming choice of local unions to entrust union affairs to persons with work experience in their respective trades. The Government underlines that the Registrar has promptly approved all applications. Therefore, in practice, the Government of the Hong Kong Special Administrative Region (HKSAR) has not hindered the election of officers of the union's choice by virtue of section 17(2) of the TUO.
3. 32. In addition, the Government has reviewed the occupational requirement for trade union officers and consulted the Labour Advisory Board (LAB) on the outcome of its review (the LAB, comprising an equal number of employer and employee members, is the most respected and representative tripartite consultative forum on labour matters in the HKSAR; all employee members are trade unionists). The Government informed members of the LAB that it had considered all relevant factors and proposed to relax the occupational requirement stipulated in section 17(2) of the TUO. Under the proposal, a proportion of union officers of a registered union would not be required to have work experience in the concerned trade and it would not be necessary for these officers to seek the Registrar's consent in order to assume office. During the consultation, some employee members of the LAB expressed reservations on the proposal. The employee members decided to conduct a questionnaire survey themselves to collect the views of all registered trade unions in Hong Kong. The Government was not involved in the design or administration of the questionnaire survey. In August 2000, employee members informed the LAB that, out of the 595 registered employee unions surveyed, 242 unions responded and 74.4 per cent of the responding unions did not support relaxing the occupational requirement. Indeed, the occupational requirement stipulated in section 17(2) of the TUO only seeks to ensure that union officers should generally have some experience in the trade concerned so that they know the interests and needs of union members better. This principle, as demonstrated by the results of the aforementioned survey, is widely accepted by local unions. Having considered the survey results, the LAB arrived at a consensus view that section 17(2) of the TUO should not be changed. The Government respects the views of the LAB and will take them into full consideration in deciding on the way forward.
4. 33. As regards the use of trade union funds, the Government indicates that it has not imposed a blanket prohibition on the use of trade union funds for political purposes. Trade unions could use their funds for political activities in the elections to the Legislative Council and the district councils. In the election of the Legislative Council in September 2000, a total of 417 employee unions registered as voters to elect representatives of the labour functional constituency to the Council. Amongst other functions, the Legislative Council enacts laws, debates on any issues concerning public interest, examines and approves budgets, taxation and public expenditure. Trade unionists have also been elected as members of the district councils and they have been active in advising the Government on district affairs that affect the well-being of the people in the district. The Government has recently completed a review of the provisions relating to the use of trade union funds under the TUO and consulted the LAB, which considered it undesirable to relax the use of union funds for political activities other than for local elections. These provisions now ensure that trade unions perform their true and prime functions of promoting and protecting the interests of their members and that they are not engaged essentially in political activities. On the other hand, members supported the proposal to allow trade unions to make charitable donations to lawful organizations outside Hong Kong in accordance with their registered rules.
5. 34. Concerning the scope of protection against anti-union discrimination, the Government has also consulted the LAB to amend the requirement of mutual consent from employer and employee for reinstatement under the Employment Ordinance. After detailed deliberations, the LAB agreed that the reinstatement provisions should be amended so that the Labour Tribunal may make an order of reinstatement/re-engagement without the need to secure the consent of the employer if the Tribunal considers it appropriate and reasonably practicable. The Government will proceed with the necessary action to introduce the legislative amendments before the Executive and Legislative Councils of the HKSAR.
6. 35. As regards collective bargaining, it has been the policy of the HKSAR Government to take measures appropriate to local conditions to encourage and promote collective bargaining on a voluntary basis. At the enterprise level, the authorities actively encourage employers to engage in effective communication with their employees' and workers' unions and to consult them on employment matters. Practical guides have been published to assist employers and employees to develop good people-management practices and handle retrenchments in consultation with employees. The Government is preparing a new publication to provide practical guidelines on workplace cooperation in the enterprise. At the industry level, the Government is actively putting in place new tripartite committees, which comprise representatives of workers' unions, employers and their organizations and the Labour Department with the objective of fostering an environment conducive to collective bargaining. Since the Government's last response to the Committee in January 2000, three new tripartite committees have been set up in the printing, hotel and tourism, as well as the cement and concrete trades. These new committees and similar ones in the catering, construction, theatre, warehouse and cargo transport and property management trades, have been holding regular meetings to discuss and agree on industry-specific issues. At present there exist altogether eight tripartite committees for the different industries.
7. 36. Through the joint efforts of members of the committees, sample work arrangements for outdoor work in times of adverse weather have been produced, and a territory-wide promotional activity for safe driving and proper rests for drivers in the warehouse and cargo transport industry have been established. A practical guide on distinguishing employer-employee relationships from contractor-subcontractor relationships is being prepared for the warehouse and cargo transport industry. In respect of the catering trade, the committee is producing a computer software programme and CD-ROM for roster scheduling and leave management. A code of labour relations practice for the catering trade is also under preparation. As for the printing industry, the tripartite committee is preparing a guide to training opportunities for skills upgrading in the industry. The Government will continue to work towards the objective of fostering effective partnership between employers and employees.
8. 37. The Government concludes that the HKSAR Government has a policy of making progressive improvements to employees' rights and benefits in the territory. In doing so, it always takes into full account the current social and economic circumstances, and the views of the LAB, while seeking to maintain a reasonable balance between the interests of employees and employers.
9. 38. The Committee notes with interest that social dialogue within the Labour Advisory Board (LAB) led to progress on the issue of protection against anti-union discrimination and that legislative amendments empowering the Labour Tribunal to order reinstatements without the employer's consent will be presented to the competent councils of the HKSAR Government. The Committee trusts that these amendments will be adopted in the near future.
10. 39. As regards the issue of free collective bargaining, while noting the explanations given by the Government concerning the efforts made at the enterprise and industry levels with a view to fostering an environment conducive to collective bargaining, the Committee must recall once again that the right to bargain freely work conditions with employers is an essential element of freedom of association, and requests the Government to give serious consideration to adopting provisions laying down objective criteria and procedures for determining the representative status of trade unions for collective bargaining purposes.
11. 40. Concerning the restrictions on eligibility to trade union office, the Committee notes the explanations given by the Government concerning the consultations within the LAB and the results of the ensuing survey, and the flexibility built in section 17(2) of the TUO, according to the Government. The Committee nevertheless observes that this flexibility is subject to the consent of the Trade Union Registrar; it recalls once again that the determination of eligibility conditions is a matter that should be left to the discretion of union by-laws and that the authorities should refrain from any intervention which might impair the exercise of this right. The Committee points out that, in a situation where trade unions are given the choice, those workers' organizations which decide to impose such restrictions are free to do so in their by-laws, while other organizations which prefer, for their own reasons or out of necessity, to call on larger pool of potential candidates would also be free to do so. The Committee therefore requests once again the Government to repeal section 5 of the Employment and Labour Relations (Miscellaneous Amendments) Ordinance, 1997 (ELRO).
12. 41. As regards the use of union funds, while noting that a debate took place in the LAB on this issue, that a number of unions participated in the election to the labour constituency of the Legislative Council, that some trade unionists have been elected as members to the district councils, and that LAB members supported the proposal to allow trade unions to make charitable donations to lawful organizations outside Hong Kong, the Committee must recall that provisions which restrict the freedom of trade unions to administer and utilize their funds as they wish for normal and lawful trade union purposes are incompatible with principles of freedom of association. The Committee once again requests the Government to amend sections 8 and 9 of the ELRO.
13. 42. The Committee requests the Government to keep it informed of the measures taken to give effect to its recommendations and reminds it that it may avail itself of the technical assistance of the ILO on all these issues.