Effect given to the recommendations of the committee and the Governing Body - Report No 326, November 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. 34. The Committee examined this case at its November 1998, November 1999, March 2000 and March 2001 meetings [see respectively: 311th Report, paras. 235-271; 318th Report, paras. 26-34; 320th Report, paras. 44-53; and 324th Report, paras. 30-42] and, on that last occasion, made the following recommendations:
   • – in respect of 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 40);
   • – regarding 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 41);
   • – as regards the scope of protection against acts of anti-union discrimination, the Committee noted that legislative amendments empowering the Labour Tribunal to order reinstatements without the employer’s consent would be presented to the competent councils of the HKSAR (Hong Kong Special Administrative Region) Government and trusted that these amendments would be adopted in the near future (paragraph 38);
   • – concerning the right to bargain freely with employers, the Committee once again requested 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 (paragraph 39).
2. 35. In its communication of 10 September 2001, 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 involved could become an officer of the union. The Government reiterates that flexibility is built into this section for persons from other trades to become union officers with the consent of the Registrar of Trade Unions. The Government underlines that the Registrar has approved all applications from trade unions asking for his consent under section 17(2). Therefore, the existing provision has not in practice restricted the freedom of unions to elect officers of their choice.
3. 36. In addition, the Government has reviewed the occupational requirement for trade union officers stipulated in section 17(2) of the TUO 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). The LAB considered the results of a survey conducted by employee members of the board and arrived at a consensus view that the current occupational requirement for union officers should not be relaxed. The Government will take the views of the LAB into full consideration in deciding on the way forward.
4. 37. As regards the use of trade union funds, the Government has 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. 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. 38. Concerning the scope of protection against anti-union discrimination, the LAB agreed that the reinstatement provisions under the Employment Ordinance 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. Drafting of the relevant legislative amendments is under way.
6. 39. 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 employers’ and workers’ unions and to consult them on employment matters. During the months of June and July 2001, the authorities launched a large-scale promotional activity entitled “Workplace Cooperation 2001” to promote the importance and benefits of workplace cooperation. The event featured a wide range of activities, including seminars, workshops, training courses, quiz competitions, visits and experience-sharing sessions.
7. 40. At the industry level, in August 2001 the Government set up another tripartite committee for the retail industry. To date, nine such committees have been set up for the construction, catering, property management, hotel and tourism, printing, theatre, warehouse and cargo transport, cement and concrete as well as the retail industries. These committees have been holding regular meetings to discuss and agree on industry-specific issues of mutual concern. Through close collaboration with the tripartite committees, the Government has produced a code of practice for the catering trade, a practical guide on distinguishing employer-employee relationships from contractor-subcontractor relationships for the warehouse and cargo transport industry, as well as a guidebook on training opportunities for skills upgrading in the printing industry. A new booklet on the rights and obligations for practitioners of the tourism industry under major labour legislation is being prepared.
8. 41. The Government concludes that its policy is to make progressive improvements to employees’ rights and benefits in the territory, taking into full account the current social and economic circumstances and also the views of the LAB. It also seeks to maintain a reasonable balance between the interests of employees and employers.
9. 42. 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 into 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 a 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).
10. 43. As regards the use of union funds, while noting that a debate took place in the LAB on this issue, which considered it undesirable to relax the use of union funds for political activities other than for local elections 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 repeal sections 8 and 9 of the ELRO.
11. 44. The Committee notes with interest that the LAB agreed that the reinstatement provisions under the Employment Ordinance should be amended so that the Labour Tribunal may make an order of reinstatement/re-engagement without the need to secure the employer’s consent if the Tribunal considers it appropriate. The Committee trusts that these amendments will be adopted in the near future.
12. 45. As regards the issue of promoting 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 conditions of work with employers is an essential element of 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.
13. 46. 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.