Demande directe (CEACR) - adoptée 1999, publiée 88ème session CIT (2000)

The Committee notes the information supplied by the Government in its first report. The Committee also notes the conclusions of the Committee on Freedom of Association in Case No. 1942 (see 311th Report, paragraphs 235-271, approved by the Governing Body at its November 1998 session).

Article 1 of the Convention. The Committee notes that article 18(1) under section 8 of the Hong Kong Bill of Rights Ordinance stipulates that everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. The Committee further notes the Government's statement that new provisions on employment protection were enacted under the Employment (Amendment) (No. 3) Ordinance, 1997, on 27 June 1997 to, inter alia, strengthen the protection of employees against acts of anti-union discrimination. The Committee notes, however, that section 32A(1)(c)(i) of the Employment Ordinance provides for protection only against dismissal of workers on grounds of union activities and section 32A(5)(a) of the same Ordinance entitles an employee to make a claim for remedies only in relation to a dismissal on grounds of trade union membership, office or activities. The Committee recalls, however, that Article 1(2)(b) of the Convention covers, in addition to dismissal, acts which "otherwise" prejudice a worker by reason of union membership or because of participation in union activities such as transfer, relocation, demotion or denial of promotion, deprivation or restrictions of all kinds on remuneration, social benefits and vocational training (see 1994 General Survey on freedom of association and collective bargaining, paragraph 212).

The Committee further notes the Government's statement that if the employer fails to show a valid reason for the dismissal, the labour tribunal may make an order for reinstatement or re-engagement subject to the mutual consent of the employer and the employee. Where no order for reinstatement or re-engagement is made, the labour tribunal may award to the employee terminal payments and compensation of up to a maximum of HK$150,000. The Committee considers, however, that legislation which allows the employer in practice to terminate the employment of a worker on condition that he pay the compensation provided for by law in all cases of unjustified dismissal, when the real motive is the worker's trade union membership or activity, is inadequate under the terms of Article 1 of the Convention, the most appropriate measure being reinstatement (see 1994 General Survey, op. cit., paragraph 220). In this regard, the Committee takes due note of the Government's statement that it has undertaken to review the requirement of mutual consent for reinstatement under the Employment Ordinance and that once the review is completed, the Government will consult the Labour Advisory Board.

In order to bring its legislation into complete conformity with Article 1 of the Convention, the Committee requests the Government to review the Employment Ordinance with a view to ensuring that provision is made in it 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 of both the employer and the employee concerned. The Committee requests the Government to keep it informed of developments in this regard.

Article 4. The Committee notes from the Government's report that the Labour Department has taken measures to encourage and promote voluntary and direct negotiation between employers and employees or their respective organizations at the enterprise level, and tripartite dialogue at the industry level. Moreover, to strengthen the promotion of voluntary and direct negotiation between employers and employees, the Labour Department has, since April 1998, set up the Workplace Consultation Promotion Unit which encourages and advises individual enterprises on the setting up of effective communication channels and staff consultative machinery by organizing a variety of promotional activities, which include training courses, workshops, visits and tailor-made consultative services.

The Committee would nevertheless recall that Article 4 of the Convention stipulates that the Government take measures to encourage and promote voluntary negotiation between employers and workers' organizations with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee observes with concern that the Committee on Freedom of Association noted in this respect that:

... the absence of legal protection for collective bargaining has resulted in the marginal representation of trade unions in Hong Kong with only very few workers covered by collective agreements in a very limited number of industries, such as some construction trades, printing and stevedore; but the agreements reached are not binding and very often not followed by the employers. Furthermore, the Government does not comment on the concrete examples given by the complainant on the experience of certain major organizations in Hong Kong -- such as the Hong Kong International Terminal Group Employees' General Union, the Hong Kong Telephone Co. Ltd. Staff Association, and the Kowloon Motor Bus Co. Ltd. Staff Association -- which have witnessed their employers' refusal to negotiate terms of employment or alternatively to implement agreements that have been negotiated (see Case No. 1942, op. cit., paragraph 269).

In light of the obligation incumbent upon the Government to promote collective bargaining as defined in Article 4 of the Convention and the absence of legal stipulation or protection thereof as noted by the Committee on Freedom of Association, the Committee would request the Government to give serious consideration to the adoption of legislative provisions which would promote voluntary negotiation between employers and workers' organizations with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee also requests the Government to indicate, in its next report, the number of collective agreements in force during the period covered by the Government's report as well as the number of workers and industries covered by such agreements.