Effect given to the recommendations of the committee and the Governing Body - Report No 343, November 2006

Case No 2186 (China - Hong Kong Special Administrative Region) - Complaint date: 14-MAR-02 - Closed

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

1. 40. The Committee last examined this case, which concerns allegations that Cathay Pacific Airways dismissed the Hong Kong Aircrew Officers’ Association (HKAOA) members and officers by reason of their trade union activities, refused to enter into meaningful negotiations, tried to break up the union and committed other acts of intimidation and harassment, at its November 2005 meeting [see 338th Report, approved by the Governing Body at its 294th Session, paras. 44-59] and requested the Government to: take measures with a view to ending the dispute through a negotiated settlement which may be considered by both parties as fair and equitable without delay, given that the proceedings before the High Court are still pending, four years after the lodging of a complaint for unlawful dismissal by several pilots of Cathay Pacific Airways. The Committee also requested the Government to inform it of the actual stage of the proceedings before the High Court; to keep it informed of the progress made in amending the Employment Ordinance; to take all necessary measures, in consultation with the social partners, so as to consider the adoption of appropriate machinery geared to prevent and redress acts of anti-union discrimination; to adopt legislative provisions prohibiting acts of interference, coupled with efficient appeal procedures and sufficiently dissuasive sanctions; and to renew its efforts for the effective promotion of bipartite collective bargaining and to take all necessary measures, including appropriate protection against anti-union discrimination and interference, so as to ensure that negotiations are genuine and meaningful.
2. 41. In a communication dated 7 June 2006, the Government provided information on the above recommendations. The Government indicated in particular that, with regard to the recommendation concerning measures to end the dispute through a negotiated settlement, the Labour Department of the Government had been maintaining close contact with Cathay Pacific Airways and the HKAOA. The negotiation had yielded a positive outcome; Cathay Pacific Airways offered the dismissed pilots financial settlement or re-employment to pilot positions (subject to their successfully passing a medical check and job interviews) in return for withdrawing their legal action relating to the dismissal. Members of the HKAOA voted in favour of the offer at an Extraordinary General Meeting on 13 April 2005 and recommended that the dismissed pilots accept the offer. Altogether, 33 of the dismissed pilots have accepted the offer, while the rest have declined it. With respect to the civil action brought before the High Court, both parties are in the process of fixing a date for a full hearing.
3. 42. The Government stated, with regard to the recommendation concerning amendments to the Employment Ordinance, that the Labour Department was still working on a draft bill that seeks to introduce new provisions on mandatory reinstatement/re-engagement under the Employment Ordinance. The legislative exercise had turned out to be far more complicated than originally envisaged, and the Government was endeavouring to introduce the bill into the Legislative Council as soon as possible.
4. 43. With regard to the recommendation on the adoption of protective machinery against acts of anti-union discrimination, the Government indicated that it fully recognized the importance of guarding against acts of anti-union discrimination. The right of employees to join trade unions and participate in union activities were clearly spelt out in the Employment Ordinance, and active steps had been taken to promote employees’ awareness of these rights through publicity and educational activities. The Government stated that workers and trade unions aggrieved by the acts of their employers could seek the advice and assistance of the Labour Relations Division of the Labour Department, which renders free and speedy conciliation service to resolve grievances and disputes between employers on the one hand and workers and their unions on the other. Offences detected in the course of conciliation and handling of complaints would be thoroughly investigated; prosecution would be initiated if there was sufficient evidence. The Government added that aggrieved parties could also seek civil remedies.
5. 44. The Government added that the judicial system of Hong Kong SAR was based on equity, fairness and openness. The standard of proof applicable to offences under the Employment Ordinance is the common law standard, which applies to all criminal offences. In 2005, as a result of the Labour Department’s prompt investigation and successful prosecution, two employers were convicted and fined for acts of anti-union discrimination.
6. 45. With regard to the recommendation concerning protection against acts of interference, the Government stated that it fully recognized the importance of guarding against acts of interference in workers’ organizations, and that its legislation and administrative systems already provided adequate legal protection.
7. 46. With regard to the recommendation on measures to promote bipartite collective bargaining, the Government indicated that it attached great importance to promoting negotiated solutions to collective disputes, as well as to promoting bipartite bargaining. The Labour Department had been maintaining close contact with Cathay Pacific Airways and the HKAOA, and the majority of the dismissed pilots had accepted the employer’s settlement offer and withdrawn from the legal action relating to their dismissal.
8. 47. The Government stated that its system of direct and voluntary bipartite negotiations, underpinned by free conciliation services rendered by the Labour Department, was working well. Moreover, nine tripartite committees had been established in order to provide effective forums for consultation and negotiation at the industrial level. At the enterprise level, officers of the Labour Department, after resolving disputes through conciliation, invariably encourage employers and employees to draw up agreements on terms and conditions of employment; several agreements in the cargo-handling industry had been concluded with such assistance. The Government added that it must be remembered that over 98 per cent of private enterprises were small and medium-sized ones, comprising over 268,000 entities, and that this fact posed a major limitation on the development of collective bargaining.
9. 48. The Committee notes the information provided by the Government. With regard to the recommendation on measures to end the dispute through a negotiated settlement, the Committee welcomes the fact that Cathay Pacific Airways had made an offer of financial settlement or re-employment for the dismissed pilots, which the HKAOA had voted in favour of. The Committee requests the Government to transmit a copy of the settlement agreement. The Committee expresses its concern, however, that for those dismissed pilots who had declined the settlement offer and are continuing with the civil action, no date for a full hearing had yet been fixed – in spite of the fact that the complaint was lodged five years ago. It further regrets that no measures had been taken by the Government to prevent irreparable damage to the said plaintiffs pending the resolution of this case. Accordingly, the Committee once again asks the Government to intercede with the parties with a view to promoting interim measures preventing irreparable damage for the dismissed pilots continuing this civil action, pending final judgement on it. The Committee also requests the Government to keep it informed of the stage of the proceedings before the High Court.
10. 49. With respect to the recommendation relating to amendments to the Employment Ordinance, the Committee notes the Government’s statement that the Labour Department was still working on a draft bill of amendments, and that the exercise had turned out to be far more complicated than originally envisaged. Under these circumstances, the Committee once again emphasizes the conclusions it reached in Case No. 1942 concerning Hong Kong SAR (China), wherein it considered that it would be difficult to envisage that the requirement of prior mutual consent to reinstatement would be easily forthcoming if the true reason for a dismissal was based on anti-union motives [see 311th Report, paras. 235-271, and 333rd Report, para. 351]. It asks the Government to continue to keep it informed of the progress made in amending the Employment Ordinance.
11. 50. With respect to the recommendation concerning the adoption of appropriate machinery geared to prevent and redress acts of anti-union discrimination, the Committee observes that the Government partially repeats information it had previously submitted on the existing laws intended to protect against acts of anti-union discrimination. While taking note of the Government’s additional indication that, due to the efforts of the Labour Department, two employers were convicted and fined in 2005 for acts of anti-union discrimination, the Committee nevertheless expresses its regret that the Government has not indicated any further steps taken to adopt appropriate machinery to protect against acts of anti-union discrimination. The Committee recalls that it had drawn the Government’s attention to shortcomings in the laws and procedures meant to protect against acts of anti-union discrimination in its last examination of this case [see 338th Report, paras. 55-56]. In this connection, the Committee stresses yet again that respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress, which are expeditious, inexpensive, and fully impartial [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 741] and once again requests the Government to take all necessary measures, in consultation with the social partners, so as to consider the adoption of appropriate machinery geared to prevent and redress acts of anti-union discrimination. The Committee requests to be kept informed in this respect.
12. 51. With respect to the recommendation made on the issue of interference, the Committee regrets that the Government limits itself to stating that its legislation and administrative systems already provided adequate legal protection, even though the Committee had previously pointed out that there was no explicit prohibition of acts of interference in the law, or any prompt and effective mechanism to address complaints of interference [see 338th Report, para. 57]. Under these circumstances, the Committee once again recalls that legislation must make express provision for appeals and establish sufficiently dissuasive sanctions against acts of interference by employers against workers and workers’ organizations to ensure the practical application of Article 2 of Convention No. 98 [see Digest, op. cit., para. 764]. It once again requests the Government to adopt legislative provisions prohibiting acts of interference coupled with efficient appeal procedures and sufficiently dissuasive sanctions. The Committee requests to be kept informed in this respect.
13. 52. Finally, the Committee takes due note of the information supplied on the various activities to promote collective bargaining. Noting specifically the Government’s indication that nine tripartite committees had been established in order to provide effective forums for consultation and negotiation at the industrial level, the Committee asks the Government to provide further information on the activities of these bodies – and in particular to indicate whether instances of bipartite collective bargaining had been initiated as a result of the said Committees’ efforts.