Demande directe (CEACR) - adoptée 1994, publiée 81ème session CIT (1994)

The Committee notes that the Government has not supplied any information in response to its 1991 direct request. It therefore repeats its previous direct request which read as follows:

1. The Committee has asked the Government to provide certain information in relation to sections 11A(1) and (2) and 11B of the Industrial Relations Ordinance, 1969, which deny the rights to function and to collect funds of unregistered unions and the right of workers to belong to more than one trade union at a time. The Government indicates that both provisions are still in force, that they had been introduced in the greater interest of workers, and that in the Government's opinion they did not restrict the workers' right to establish and join organizations of their own choosing.

The Committee notes the Government's reply, but must reiterate that these provisions do not appear to be in conformity with the guarantees provided by Article 2 of the Convention. Accordingly, it asks the Government to introduce the necessary amendments to bring its law and practice into conformity with the Convention. In doing so the Committee would point out that a strict interpretation of section 11A would make it virtually impossible to establish any new trade union. This is because a union in the process of being established could not lawfully collect funds or function as a trade union until it had been registered, but it could not secure registration until it had established a secure membership base which in turn would be virtually impossible without being able to collect subscriptions and to provide at least some level of service to members or potential members.

2. The Committee had expressed a number of concerns about various aspects of those provisions of the Industrial Relations Ordinance which deal with strikes and other forms of industrial action. In particular: (i) the fact that only a collective bargaining agent can give notice of a lawful strike seems to deprive workers in the unorganized sector, and members of minority unions, of the right to strike (sections 28, 43 and 46(1)(b); (ii) the fact that lawful strike notice can be served only where at least 75 per cent of the members of the relevant bargaining agent have voted in favour (section 28) constitutes an unreasonable restriction upon the right to strike; (iii) the provisions which enable the Government to prohibit strikes which have lasted more than 30 days (section 32(2)), which entail serious hardship to the community or are prejudicial to the national interest (section 32(2)), or involve a "public utility service" (section 33(1)), appear to place restrictions on the right to strike which go beyond those which have been regarded as acceptable by the Committee; (iv) section 59 of the Ordinance which makes it an offence to take part in, instigate, etc. a "go-slow" in the Committee's view, such restrictions are justified only if the action is not peaceful; and (v) the nature of the penalties which may be imposed in respect of participation, etc. in unlawful industrial action (sections 57, 58 and 59) do not appear to be consistent with the principles on freedom of association.

In response to specific queries directed to it by the Committee, the Government indicates that since 1972 only five strikes have been prohibited by virtue of section 32(2), and four by virtue of section 33(1). The Government indicates that no workers or individuals have been prosecuted under any of sections 57, 58 and 59 since 1972. The 75 per cent voting requirement is necessary to ensure that workers' demands possess the necessary degree of credibility, whilst the strike prohibitions in sections 32 and 33 are needed in order to sustain the supply of essential goods and services to the community.

The Committee has always recognized that the right to strike may be circumscribed for a limited period in time of acute national crisis. It may also be restricted in relation to public servants exercising authority in the name of the State, and in relation to services whose interruption would endanger the life, personal safety or health of the whole or part of the population. Such restrictions should be compensated by the existence of adequate, impartial and speedy conciliation and arbitration procedures. Statutory restrictions on the methods used, or the conditions to be satisfied in advance of lawful strike action, should not be of such a character as to result in practice in a total prohibition or an excessive limitation of the exercise of the right to strike. Penalties for engaging in strikes and other forms of industrial action should be imposed only where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association. Furthermore, penalties should be proportionate to the seriousness of the offences committed and if they are imposed at all, measures of imprisonment in any case should be subject to the regular judicial control.

The provisions of the Industrial Relations Ordinance outlined above do not appear to be compatible with these principles. Accordingly, the Committee calls upon the Government to introduce legislative amendments to bring its law and practice into full conformity with the requirements of the Convention.