CMNT_TITLE_CAS

Written information provided by the Government

Information provided on 20 May 2021

Hong Kong has been applying the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) with modifications in respect of Articles 3, 5 and 6 since 1963. The Hong Kong Special Administrative Region (HKSAR) Government has taken note of the observations of the Committee of Experts in 2019 and 2020 (the observations).

Freedom of Association and Right to Organise

As explained in the previous reports of the HKSAR on the application of Convention No. 87, the right and freedom of association, and the right and freedom to form trade unions in the HKSAR are guaranteed under the Basic Law of the HKSAR of the People’s Republic of China (Basic Law). The Hong Kong Bill of Rights Ordinance (Chapter 383 of the Laws of Hong Kong) also provides for such rights.

Under the Trade Unions Ordinance (TUO) (Chapter 332 of the Laws of Hong Kong), any group of seven persons can apply to form a trade union. The number of trade unions registered under the TUO in the HKSAR increased over the years. Specifically, the number of registered employee unions increased by 56.5 per cent from 866 as at 31 December 2019 to 1,355 as at 31 December 2020. Except for dissolution by or at the request of trade unions, no trade union has been deregistered. In the HKSAR, trade union members and officers enjoy a range of rights under the TUO, including the immunity from civil suits for certain acts done in contemplation or furtherance of a trade dispute.

Sufficient safeguards against anti-union discrimination are accorded to employees under the Employment Ordinance (EO) (Chapter 57 of the Laws of Hong Kong). The EO stipulates that every employee has the right to be or to become a member or an officer of a trade union, to take part in the activities of the trade union at any appropriate time, and to associate with other persons for the purpose of forming a trade union. Employers must not prevent or deter employees from exercising these rights. Otherwise, they may incur criminal sanction.

On the International Trade Union Confederation (ITUC)’s observation in September 2016 alleging a group of coach drivers were all dismissed by the employer before a strike, the Labour Department of the HKSAR Government carried out a prompt investigation after the concerned coach drivers had lodged complaints on alleged anti-union discriminatory acts. While there was insufficient evidence to substantiate an anti-union discriminatory offence, the HKSAR Government took out prosecution against their employer on late payment of wages and conviction was secured.

The HKSAR Government is fully committed to protecting the trade union rights of employees. As always, we will not tolerate abuses of the law by employers. Subject to sufficiency of evidence, prosecution will be taken out against employers and/or persons acting on employers’ behalf.

Right of peaceful assembly of trade union leaders

Every person must observe the law in force in exercising his or her right of peaceful assembly. As pronounced by one of the judges at the Hong Kong Court of Appeal in the judgment of a sentencing case:

The basic freedoms conferred on Hong Kong residents are comprehensive and in no way lesser than the freedoms enjoyed by people of other advanced and free societies. However, [the freedoms of assembly, speech, procession, demonstration and expression of opinions] are not absolute or unrestricted; they are subject to the supervision of the law. Hong Kong residents are obliged to observe the laws that are in force in Hong Kong, and the exercise of the rights conferred by law is by no means a reason or excuse for doing illegal acts. Any act of protest or demonstration for which the police have not issued a Notice of No Objection, or in which violence or the threat of violence is used to express one’s opinions, crosses the boundary of the peaceful exercise of the rights and enters the territory of unlawful activities; it becomes an unlawful act which interferes with the rights and freedoms of others.

With regard to the alleged “repression” of protests by the Hong Kong Police Force (the police) in 2019, the accusation has completely ignored the violent and illegal nature of the acts by the rioters, as well as the unprecedented damage caused to society. The police have stringent guidelines on the use of force that are consistent with international human rights norms and standards. The use of force by the police are conscious decisions made having regard to actual circumstances and needs with due considerations.

In respect of the arrests of trade union leaders, any arrest and prosecution is directed against the criminal act and has nothing to do with the political stance, background or occupation of the person(s) concerned. It is a hypocritical argument of politics overriding justice for anyone advocating privilege for certain groups of people, such as labour representatives, to contend that their law-breaking acts could evade justice. The accused also has the right to a fair and open trial before an independent and impartial court.

With regard to Mr Lee Cheuk Yan, he was prosecuted in connection with unauthorized assemblies on 18 August 2019, 31 August 2019, 1 October 2019 and 4 June 2020. In respect of the first two cases, the court, which enjoys independent judicial power, has made a ruling and convicted the defendants. This proves that the prosecution actions were fully justified. The arrested persons were from diverse backgrounds, and the suspected unlawful acts had nothing to do with the activities of trade unions. The relevant judgments (in English only) are attached. As the judicial proceedings of the other cases are ongoing, it is inappropriate for us to comment further.

In respect of the alleged arrest of Mr Yu Chi Hang by the police in December 2015, we are unable to locate the alleged case based on the information provided. However, it should be emphasised that any arrest by the police is based on facts and evidence, and conducted in strict accordance with the law.

The HKSAR Government will continue to handle every case in a fair, just and impartial manner in accordance with the law.

The Law of the People’s Republic of China on Safeguarding National Security in the HKSAR

Safeguarding national security through legislation is in line with international practice. Western countries have also enacted laws to safeguard their respective national security, and established relevant legal systems and enforcement mechanisms. The HKSAR Government has a duty to enact laws for safeguarding national security under article 23 of the Basic Law, but despite a lapse of over 23 years since reunification, it has failed to legislate to prohibit acts and activities endangering national security as required under the Basic Law. Given the political situation in Hong Kong at that time, this task could not be completed in the foreseeable future.

As the HKSAR Government has detailed in the response to the observations of ITUC and the Hong Kong Confederation of Trade Unions in November 2020, this legal vacuum exposed the serious threats to national security faced by Hong Kong at the series of riots since June 2019. In view of the severe situation in Hong Kong at the time, with protestors becoming increasingly violent, there were growing signs of separatism and terrorism, seriously affecting the lawful rights and interests of Hong Kong residents. It is therefore necessary for the Central Authorities to take immediate steps to introduce measures for safeguarding national security in the HKSAR. Against this background, the Standing Committee of the National People’s Congress adopted the Law of the People’s Republic of China on Safeguarding National Security in the HKSAR (Hong Kong National Security Law) on 30 June 2020. The HKSAR Government promulgated the Hong Kong National Security Law for implementation on the same day.

The Hong Kong National Security Law clearly stipulates that human rights shall be respected and protected in safeguarding national security in the HKSAR; the rights and freedoms, including freedom of speech, of the press, of publication; of association, of assembly, of procession and of demonstration, which the HKSAR residents enjoy under the Basic Law and the provisions of the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong shall be protected in accordance with law. Any measures or enforcement actions taken under the Hong Kong National Security Law must be in line with the above principle. All persons shall observe the requirements under the law, shall not contravene the fundamental provisions of the Basic Law, and shall not endanger national security or public safety, public order or the rights and freedoms of others, etc. in exercising their rights.

The Hong Kong National Security Law further lays down many legal principles for the protection of defendants, including the presumption of innocence, the prohibition of double jeopardy, the right to defend and other rights in judicial proceedings that parties in judicial proceedings are entitled to. Any measures or enforcement actions taken under the Hong Kong National Security Law must observe these principles. The above features have put the Hong Kong National Security Law on a par with, if not superior to, similar national security laws in other jurisdictions.

As a matter of fact, the implementation of the Hong Kong National Security Law has delivered immediate results, and Hong Kong has emerged from chaos into stability, with a significant reduction in violent acts: the number of people arrested for offences in public order incidents in the first six months after the implementation of the Hong Kong National Security Law dropped by around 85 per cent year-on-year; the number of cases for arson and criminal damage also dropped by around 75 per cent and 40 per cent respectively. Activists endangering national security either fled or announced their withdrawal; advocacy of “Hong Kong independence” subsided substantially; the community largely resumed normal, and people’s lawful rights are protected. Our economy and people’s livelihood could revive.

Legislation on article 23 of the Basic Law

As aforementioned, the HKSAR has the constitutional responsibility for enacting legislation on article 23 of the Basic Law. Article 7 of the Hong Kong National Security Law also clearly stipulates that “(t)he Hong Kong Special Administrative Region shall complete, as early as possible, legislation for safeguarding national security as stipulated in the Basic Law of the Hong Kong Special Administrative Region and shall refine relevant laws”.

In this regard, apart from drawing up effective and pragmatic proposals and provisions, the HKSAR Government will also conduct public consultation properly, formulate appropriate publicity and explanation strategies, as well as communicate more with members of the public, with a view to explaining clearly the legislative principles and details and avoiding misunderstanding.

Conclusion

The HKSAR Government trusts that the above information will further clarify the concerns put forth in the Observations. The HKSAR Government has all along attached great importance to fulfilling all the obligations of International Labour Conventions applied to the HKSAR. We would like to assure the Committee of Experts that there is no infringement of or incompliance with the Convention. The HKSAR Government will continue to observe all the applied International Labour Conventions.

Additional information provided on 8 June 2021

Unauthorized assembly

Under section 17A(2) of the Public Order Ordinance (POO), where any public meeting or public procession takes place in contravention of the Commissioner of Police’s (the Commissioner) prohibition or objection, or where three or more persons taking part in a public gathering refuse or wilfully neglect to obey an order given by a police officer under the Ordinance, the public gathering shall be an “unauthorized assembly” in law.

Any public meeting with participants of more than 50 persons or any public procession with participants of more than 30 persons that are regulated under POO may be conducted only if a notice has been given to the Commissioner who gives no prohibition or objection. The Commissioner (or his delegated officers) has to carefully examine each case based on all the relevant facts and circumstances. By law, the Commissioner may only prohibit or object a public meeting or public procession if it is necessary in the interests of national security, public safety, public order or the protection of the rights and freedoms of others, and when those interests could not be met by the imposition of conditions.

There is also a proper appeal system in place under POO. If a person is aggrieved by the decision of the Commissioner to prohibit a public meeting, to object a public procession or to impose conditions on the holding of a public meeting or procession, he may lodge an appeal to the independent statutory Appeal Board on Public Meetings and Processions (Appeal Board). The Appeal Board is chaired by a retired judge. It may confirm, reverse or vary the prohibition, objection or condition imposed by the Commissioner. The decision of the Appeal Board is also amenable to the challenge of judicial review.

The Hong Kong Court of Final Appeal has held that the statutory requirement for notification under POO is constitutional. It is required to enable the police to fulfil the proactive duty resting on Government to take reasonable and appropriate measures to allow lawful demonstrations to take place peacefully. A legal requirement for notification is in fact common in jurisdictions around the world.

POO regulates matters in relation to assemblies and processions. The restrictions therein are consistent with the provisions of the International Covenant on Civil and Political Rights.

The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region

According to article 1 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (Hong Kong National Security Law), the Law is enacted for the purpose of:

(a) ensuring the resolute, full and faithful implementation of the policy of One Country, Two Systems under which the people of Hong Kong administer Hong Kong with a high degree of autonomy;

(b) safeguarding national security;

(c) preventing, suppressing and imposing punishment for the offences of secession, subversion, organization and perpetration of terrorist activities, and collusion with a foreign country or with external elements to endanger national security in relation to the Hong Kong Special Administrative Region;

(d) maintaining prosperity and stability of the Hong Kong Special Administrative Region; and

(e) protecting the lawful rights and interests of the residents of the Hong Kong Special Administrative Region.

It can be seen that the purpose of the enactment of the Hong Kong National Security Law has no direct relationship with labour issues.

The Hong Kong National Security Law has also clearly stipulated four categories of offences that endanger national security, namely secession, subversion of state power, terrorist activities, and collusion with a foreign country or with external elements to endanger national security. Such offences are clearly defined in the Hong Kong National Security Law and are similar to those in the national security laws of other jurisdictions. The elements, penalties, mitigation factors and other consequences of the offences are clearly prescribed in Chapter III of the Hong Kong National Security Law. The prosecution has the burden to prove beyond reasonable doubt that the defendant has the actus reus and mens rea of the offence before the defendant may be convicted by the court. Law-abiding people, including Hong Kong residents/labours and overseas tourists/investors, will not unwittingly violate the law.

Legislation on article 23 of the Basic Law

The HKSAR has the constitutional responsibility for enacting legislation on article 23 of the Basic Law to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets; to prohibit foreign political organisations or bodies from conducting political activities in the HKSAR; and to prohibit political organizations or bodies of the HKSAR from establishing ties with foreign political organizations or bodies. The HKSAR Government has failed for the past 23 years since reunification to enact its national security laws as required by article 23 of the Basic Law to safeguard national security.

Article 7 of the Hong Kong National Security Law also clearly stipulates that “(t)he Hong Kong Special Administrative Region shall complete, as early as possible, legislation for safeguarding national security as stipulated in the Basic Law of the Hong Kong Special Administrative Region and shall refine relevant laws”.

Discussion by the Committee

Interpretation from Chinese: Government representative, Director-General of the Department of International Cooperation – I would like to congratulate you on your election as the Chair of this Committee. We have carefully noted that the Committee of Experts has made its observations on the application of Convention No. 87 in Hong Kong Special Administrative Region (SAR). I will now give the floor to the Representative of Hong Kong SAR to make detailed remarks.

Interpretation from Chinese: Another Government representative, Commissioner for Labour – The Government of Hong Kong Special Administrative Region of the People’s Republic of China or the Hong Kong SAR would like to thank the Committee on the Application of Standards for the opportunity here to address the Committee of Experts’ observations in 2019 and 2020 on the Hong Kong SAR’s application of the Convention.

This Convention has been applied to Hong Kong with modifications in respect of Articles 3, 5 and 6 since 1963. All along, the Hong Kong SAR Government has been fully committed to taking measures to protect employees’ rights to form and join trade unions, and to participate in trade union activities.

The Basic Law of the Hong Kong SAR of the People’s Republic of China, or Basic Law, protects the right and freedom of association, and the right and freedom of Hong Kong residents to form and join trade unions.

The Hong Kong Bill of Rights Ordinance also provides for such rights. However, as in other jurisdictions, these rights are not absolute and are subject to restrictions provided by law for the protection of national security, public order, etc.

The Convention clearly stipulates that one shall respect the law of the land in exercising the rights provided for in this Convention. The Committee of Experts also pointed out in its observations that workers’ and employers’ organizations should have the right to organize their activities in full freedom, while respecting the law of the land.

The authorities should refrain from any interference which would restrict freedom of association and assembly or impede the lawful exercise thereof, provided that the exercise of these rights does not cause a serious and imminent threat to public order.

The Hong Kong SAR Government has been committed to promoting sound trade union administration and trade unionism. Trade union members and officers enjoy a range of rights under the Hong Kong SAR’s law on trade unions, including the immunity from civil suits for certain acts done in relation to trade disputes. Although the purposes of a trade union may be involved in restraint of trade, trade union members are not liable to criminal prosecution for conspiracy.

Over the past decade, the number of trade unions registered in the Hong Kong SAR increased steadily and recorded a sharp rise in 2020. Specifically, the number of registered employee unions increased more than half from 866 at end 2019 to 1,355 at end 2020. These figures demonstrate that the right and freedom of association and the right and freedom to form and join lawful trade unions are fully enjoyed by Hong Kong residents. Moreover, the visits to trade unions conducted by the Labour Department have not found any acts of interference of employee and employer organizations by each other in their establishment, functioning or administration.

No complaint from trade unions about interference was received.

Fully upholding the protection of the right of our workforce to join trade unions, we have put in place a series of safeguards to protect employees against anti-union discrimination under Hong Kong’s labour law. Our law stipulates that an employer shall not prevent or deter an employee from exercising his rights to be or to become a member or an officer of a trade union, to take part in the union activities at any appropriate time, to associate with other persons to form a trade union, etc.

Furthermore, the law does not allow an employer to dismiss, penalize, or discriminate against an employee by reason of his exercising the above rights. Otherwise, offenders, including employers or persons acting on their behalf, may incur a criminal sanction.

On the alleged dismissal of a group of coach drivers by the employer before a strike raised by the International Trade Union Confederation (ITUC) in 2016, referred to in a Committee of Experts’ observations, the Hong Kong SAR Government carried out a prompt investigation after receiving complaints on the alleged anti-union discriminatory acts.

While there was insufficient evidence to substantiate an anti-union discriminatory offence, the Hong Kong SAR Government took out prosecution against the employer on late payment of wages and a conviction was secured.

The Hong Kong SAR Government does not, and will never, tolerate abuses of law by employers, and will promptly take out impartial and in-depth investigation into complaints on suspected anti-union discriminatory acts. Subject to sufficiency of evidence, prosecution will be taken out against the employers and/or persons acting on employers’ behalf.

Hong Kong is a society respecting and upholding the rule of law. Any arrest and prosecution is directed against the criminal acts according to the law, and has nothing to do with the political stance, social background or trade union membership of the persons concerned.

The police’s arrest actions must be based on facts and evidence, and conducted in strict accordance with the law. The Department of Justice oversees criminal prosecution, free from any interference. There is an independent judiciary with the power of final adjudication in Hong Kong. Everyone will receive a fair and just trial. It is a hypocritical argument of politics openly overriding legal justice for anyone to advocate privilege for certain groups of people, such as labour representatives, and contend that they can violate the law without facing legal sanctions.

The court, which enjoys independent judicial power, has, in accordance with the law, ruled and convicted individual unionists in contravention of criminal offences after trial. The fair and transparent legal proceedings and court rulings prove that the prosecution actions were fully justified in fact and in law. In these criminal cases, prosecutions of the persons concerned were made because of their criminal offences and had completely nothing to do with their trade union membership. As the judicial proceedings of the other related cases are still ongoing, it is inappropriate for the Hong Kong SAR Government to make comment further in this occasion. In respect of the alleged arrest of a trade unionist (Mr Yu Chi Hang) by the Hong Kong Police in December 2015 which the ITUC mentioned, we are unable to locate the alleged case based on the information provided. However, we must hereby stress again that all arrests and prosecutions were made having regard to the persons’ acts, which violated the law and had nothing to do with their personal background, including their trade union membership or activities.

The Hong Kong SAR will continue to handle every case in a fair, just and impartial manner in accordance with the law.

As regards the Committee of Experts’ concern about the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong SAR or Hong Kong NSL, we must point out that safeguarding national security through legislation is in line with the international practice. Various countries also have their own legislation and relevant enforcement mechanisms to safeguard their own national security.

The Hong Kong SAR Government has a duty to enact laws for safeguarding national security under article 23 of the Basic Law, but 23 years after the reunification, has still not been able to legislate to prohibit acts and activities endangering national security as required by the Basic Law.

Given the political situation in Hong Kong at that time, this task could not be completed in the foreseeable future.

This legal vacuum exposed the serious threats to national security faced by Hong Kong at the series of riots since June 2019. In view of the severe situation in Hong Kong at that time, with protesters becoming increasingly violent, there were growing signs of separatism and terrorism, seriously affecting the lawful rights and interests of Hong Kong residents. It is therefore necessary for the Central Authorities to take immediate steps to introduce a legal system and enforcement mechanisms for safeguarding national security in the Hong Kong SAR. Against this background, the Standing Committee of the National People’s Congress of the People’s Republic of China adopted the Hong Kong National Security Law (NSL) on 30 June 2020. The Hong Kong SAR Government promulgated the Hong Kong NSL for implementation on the same day.

We hope that the Committee of Experts can appreciate that the Hong Kong NSL has not amended any provision of the Basic Law. All human rights provisions remain untouched. The Hong Kong SAR Government will continue to ensure the enjoyment by the Hong Kong residents of human rights and freedoms provided under the Basic Law.

In fact, the Hong Kong NSL clearly stipulates that the human rights shall be respected and protected in safeguarding national security in Hong Kong. The rights and freedoms, including freedoms of speech, of the press, of publication, of association, of assembly, of procession and of demonstration, which the Hong Kong SAR residents enjoy under the Basic Law and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong shall be protected in accordance with law. Any measures or enforcement actions taken under the Hong Kong NSL must be in line with the above principles. On the other hand, when exercising these rights, one must respect the laws, refrain from contravening the fundamental provisions of the Basic Law, or endangering national security, public safety, public order, or rights or freedoms of others.

The Hong Kong NSL further lays down many legal principles for the protection of defendants, including the presumption of innocence, prohibition of double jeopardy, the right to defend and other rights in judicial proceedings that parties in judicial proceedings are entitled to. Any measures or enforcement actions taken under the Hong Kong NSL must observe these principles and stringent procedural requirements, including the conditions that must be met when seeking authorization to take investigation measures. The above features have put the Hong Kong NSL on a par with, if not superior to, similar national security laws in other jurisdictions.

Any law enforcement actions taken by the Hong Kong SAR Government are based on evidence, strictly according to the law, directed at the criminal acts committed by the persons or entities concerned. They have absolutely nothing to do with people’s political stance, social background, occupation or trade union activities. In this regard, all law enforcement actions under the Hong Kong NSL taken by the law enforcement agencies target acts endangering national security, with a view to fulfilling the purposes of the enactment of the Hong Kong NSL, which include preventing, suppressing and imposing punishment for the offences endangering national security and maintaining the prosperity and stability of the Hong Kong SAR. It is definitely not related to labour issues or whether the concerned entity or person is a labour union or unionist.

The implementation of the Hong Kong NSL has delivered immediate results, and Hong Kong has emerged from chaos into stability, with a significant reduction in violent acts: the number of cases for arson and criminal damage dropped by around 75 per cent and 40 per cent respectively. Advocacy of “Hong Kong independence” subsided substantially. Public order largely resumed normal. Lawful rights of people, including workers and trade unions, are protected, free from the risk of being attacked based on their opinions. This is conducive for the trade unions and workers to voice their opinions and defend their rights and interests. On top of which, economic and the people’s livelihoods could revive.

We hope that the above could address the Committee of Experts’ concern on the Hong Kong NSL.

Finally, we must stress that the rights of trade unions and employees to take part in trade union activities in the Hong Kong SAR are adequately protected by our trade union and labour laws. Their rights and freedoms have remained intact and have not been affected in any way by the implementation of the Hong Kong NSL. We assure the Committee that the Hong Kong SAR will continue to comply with all the obligations of International Labour Conventions applied to the Hong Kong SAR. We thank the Committee of Experts for its observations. The Hong Kong SAR Government will continue to provide the Committee of Experts with the information requested.

Worker members – This is the first time that the Committee has examined China – Hong Kong SAR and its application of the Convention, but the acute decline in respect for civil liberties and freedom of association raises extremely serious concerns. Trade union rights are seriously under attack. Trade unionists are being persecuted for defending the hard-won rights of workers and for carrying out legitimate trade union activities. The authorities are violating their obligations under the Convention.

First, on the situation of civil liberties and respect for trade union rights. Brother Lee Cheuk Yan, General Secretary of the Hong Kong Confederation of Trade Unions (HKCTU) and long-time participant in the Conference Committee was prosecuted for participating in unauthorized protests on 18 August 2019, 31 August 2019, 1 October 2019 and 4 June 2020. Brother Lee has been convicted for the August and October 2019 charges. Today, the trial for the June 2020 charges has commenced.

The Government alleges that Brother Lee’s participation had nothing to do with his trade union activities and therefore his arrest and detention are justified. The Government is wrong on this. The supervisory bodies of the ILO, including the Committee of Experts, have stated that the exercise of civil liberties by trade unionists relating to the Government’s economic and social policies and in defence of socio-economic and occupational interests are covered by the Convention.

The Committee of Experts has further noted that where workers’ and employers’ organizations deem that they do not enjoy the fundamental liberties necessary to fulfil their mission, they are justified in resorting to peaceful protests to realize such fundamental liberties. Such peaceful actions are bona fide trade union activities. We note that the district court in its verdict concluded that the demonstration he participated in was peaceful.

In its examination of this case, the Committee of Experts has again indicated that peaceful strikes and demonstrations by trade unionists should not give rise to arrests and detentions. The supervisory bodies are clear that among those civil liberties essential for the normal exercise of trade union rights are freedom of expression, freedom of assembly, freedom from arbitrary arrest and detention, and the right to a fair trial by an independent and impartial tribunal. The authorities in the Hong Kong SAR must guarantee civil liberties and freedom of association in law and in practice. No one should be deprived of their freedom or be subject to penal sanctions for peacefully participating in protest strikes or demonstrations.

Second, on the Public Order Ordinance. This regulation provides for broad discretionary powers to prohibit public assemblies. The police authorities have the power to disqualify public assemblies as “unlawful” without the obligation to show any evidence of their efforts to facilitate the exercise of the right to assemble freely. Organizers and participants in unauthorized assemblies face a penalty of imprisonment for up to five years. Police authorities tend to crack down instead of guaranteeing and facilitating peaceful protests. If an assembly is qualified by the authorities as a “riot” – based on vaguely defined criteria – the penalty can be as severe as 12 years’ imprisonment. It is impossible to freely exercise the right of freedom of assembly in this context.

Now, I would like to move on to the drastic crackdown on civil liberties and surveillance that came with the adoption of the National Security Law on 30 June 2020. Under the National Security Law, offences related to national security, such as “subversion”, “terrorism” and “collusion with foreign forces”, incur maximum penalties of life imprisonment. But these offences are so broadly defined that virtually anything could be deemed a threat to “national security”.

We will reiterate the comments of the Committee of Experts with respect to Article 8 of the Convention. The law of the land shall not be such as to impair, or applied in a manner that impairs, the guarantees provided by the Convention. The authorities must ensure that trade unions have the right to organize their economic and social activities in full freedom.

Several trade union leaders were charged in February 2021 with the offence of “conspiracy to commit subversion” under the National Security Law for merely taking part, in connection with their trade union functions, in the primary polls organized in 2020. They face life imprisonment if convicted.

We recall that in its latest observations on the application of the Convention by the Hong Kong SAR, the Committee of Experts categorically confirmed that the right to engage in certain political activities, including expressing support for a political party considered more able to defend the economic, social and occupational interests of trade union members, is protected under the Convention. The Committee on Freedom of Association has also issued numerous observations supporting the rights of trade unions to express publicly their opinion regarding the Government’s economic and social policy or to express support, if so decided by their members, for a political party as a means towards the advancement of their economic and social objectives.

The Committee of Experts has also emphasized that international trade union solidarity constitutes one of the fundamental objectives of any trade union movement and expects the Government to ensure that normal trade union interactions and activities are indeed protected in law and in practice.

We must also point out that the COVID-19 measures adopted in March 2020 under the Prevention and Control of Disease (Prohibition on Group Gathering) Regulation to prohibit all public gatherings of more than four persons under a penalty of six months’ prison and a fine is disproportionate and was adopted without any prior tripartite consultation.

The situation in Hong Kong SAR is further compounded by numerous and important gaps in the national legislation that effectively deny fundamental labour rights to workers in Hong Kong SAR, including denying civil servants the right to organize.

The turn of events in Hong Kong SAR is serious and threatens the free exercise of trade union rights. The extent of surveillance, pressure and attacks on the trade union movement in Hong Kong SAR under the National Security Law is unprecedented. Democracy and respect for civil liberties are essential for the exercise of the fundamental right of workers’ and employers’ organizations. We call on the authorities responsible for Hong Kong SAR to take action without delay to ensure full compliance with the international standards on freedom of association.

Employer members – This case concerns the application in law and practice of the Convention by the Hong Kong SAR of the People’s Republic of China, a fundamental Convention that was ratified in 1997. We note that this is the first time that the Committee has discussed this case. At the outset, we would like to express our gratitude to the Government representatives for the comprehensive oral and written information on this case provided to the Committee.

On the issue of the dissuasion of workers from exercising the right to peaceful assembly, we note that the Committee of Experts in 2020 observed that the Government has not provided information on the 2016 ITUC observations concerning the application of the Convention.

We also note that in its 2020 report, the Committee of Experts noted allegations made by the ITUC and the HKCTU concerning issues relating to the September 2020 public protests, and also allegations on the use of the National Security Law.

The Employer members must take due note that the Government has responded to these allegations in its comprehensive oral submission to the Committee today, and also in its written information dated 20 May and 8 June 2021. We thank the Government for the provision of this information and the clarification it has afforded.

Given the fundamental importance of the principle of freedom of association at the core of ILO values, the Employer members invite the Government to continue to provide full information regarding the outcomes of procedures to examine police action and arrests made in connection with the protests, and to take all necessary measures to guarantee the right of employers’ and workers’ organizations to organize their activities, including peaceful public meetings.

I would now like to turn to the second issue highlighted by the Committee of Experts regarding the National Security Law and its relation to Articles 2, 3, 5 and 8 of the Convention.

The Employer members take note from the Committee of Experts’ observations of the various allegations and concerns expressed by the ITUC and the HKCTU regarding the scope and impact of the National Security Law, which entered into force on 30 June 2020. The Employers’ group notes that the Government has responded to these allegations in its written information submitted to the Committee on 20 May 2021.

The Employer members take note of and thank the Government for its submission regarding the provisions of the National Security Law. The Employers’ group would like to point out that the content of Article 8 of the Convention sets out that, in exercising the rights provided for in the Convention workers and employers and their respective organizations, like other persons or organized collectives, shall respect the law of the land, and that the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in the Convention.

The rights provided for in the Convention referred to in Article 8 include the rights of workers’ and employers’ organizations to organize their activities in full freedom and to formulate their programmes with a view to defending their occupational interests, in particular the right for workers and employers and their respective organizations to hold meetings and peaceful protests to freely express support for a political party and to have close contact and communication with international organizations of workers and employers. In that regard, it is important that public authorities avoid interference with these rights and also that the exercise of these rights does not cause a serious and imminent threat to public order. Public order must be maintained.

The Employer members trust that the Government will continue to undertake efforts so that the rights of employers and workers and their organizations under the Convention are fully protected in the implementation of the National Security Law.

The Employer members request the Government, in consultation with the social partners, to monitor the application of the National Security Law and provide information to the Committee of Experts on the impact that the law has on the application of this Convention according to the regular reporting cycle.

Worker member, China – As a trade union worker in the largest trade union organization in Hong Kong SAR – the Hong Kong Federation of Trade Unions (FTU), which has over 410,000 members in Hong Kong SAR – I have been elected by trade unions as an employee representative on the Labour Advisory Board for the third time. Over decades, local employees have always been able to participate or organize any trade unions in the way they want. My speech represents the voice of local Hong Kong employees to the ILO and this Committee.

The implementation of the National Security Law is strongly supported by the majority of local employees. The primary objective of the Law is to maintain social stability by protecting the safety of every single Hong Kong SAR resident. Such stability is the foundation of the livelihood of our people. Hong Kong SAR has suffered from social riots and extreme political actions in recent years. Its GDP fell by 3 per cent in 2019, even before COVID 19. Such a downturn in the economy is a direct consequence of the man-made disasters created by the rioters. Those agitators aimed to paralyse Hong Kong SAR by breaking what we call in Chinese “the rice bowl” of employees of various industries, which includes catering, tourism, hospitality, retail, aviation and transportation.

During the 2019 riot, can you imagine taxi drivers and truck drivers being dragged out of their vehicles and beaten, and being lynched, just because they were not happy with the blockage of traffic created by the rioters?

Can you imagine local eateries and shops being burnt down by rioters only because they supported the police? Can you imagine an old janitor, Mr Luo Changqing, being killed by the rioters who randomly threw bricks at him? Can you imagine that the rioters could trace the location of the Hong Kong SAR police on a real-time basis using a mobile app called “HKmap.live”? The rioters occupied universities, they paralysed the Cross-Harbour Tunnel, and they made more than 10,000 petrol bombs to attack our police force. The social riot in 2019 was a nightmare for most of us here in the Hong Kong SAR.

How despicable to say that the rioters are acting in the name of peace and democracy. The implementation of the National Security Law is tackling the root cause of the issue, restoring the safety and stability that our people deserve. We no longer have to worry about the random blockage of traffic, the petrol bombs, or being randomly attacked simply because we have a different political opinion. Unfortunately, not only do Western media turn a blind eye to the riots, they also demonize the National Security Law.

In fact, the freedom of association under the National Security Law is still being enjoyed by all of us regardless of our different political stands. For example, the HKCTU successfully organized a strike for employees from a beverage company last month, whereas our FTU has also organized over 50 activities, like petitions, press conferences, protests for the minimum wage and unemployment assistance, as usual since the implementation of the National Security Law. Furthermore, there has been an increasing number of newly formed trade unions.

It is agreed that any social actions for rights must abide by the law and must not pose any threat to society. The National Security Law helps to create a secure environment, which facilitates the development of trade unions. The Law also promises our original labour rights without harm. The Law ensures that the international cooperation and involvement of trade unions will continue as usual, as I am doing now.

Finally, I must mention what happened on 1 October 2019. On that day, it was the 70th anniversary of the Chinese National Day, but that day the rioters paralysed the Hong Kong SAR crazily and attacked the police everywhere. Very terrible! Very, very terrible! If you were a Hong Kong SAR resident like me, you would support the enactment of the National Security Law.

Employer member, China – It is my honour to speak on behalf of the employers in Hong Kong SAR today. The right and freedom of association and the right and freedom to form trade unions in the Hong Kong SAR are guaranteed under the Basic Law of the Hong Kong SAR of the People’s Republic of China. As employers, we fully respect and recognize employees’ right to form trade unions and organize their activities. We maintain open and constructive dialogue with workers’ organizations to discuss and resolve matters of mutual concern.

Through tripartite dialogue between workers’ and employers’ organizations and the Government, employee rights and benefits in the Hong Kong SAR have been improving over the years. To name a few: statutory paternity leave has been extended from 3 days to 5 days since January 2019, and statutory maternity leave has been extended from 10 weeks to 14 weeks since last December. Besides, proposals on progressively increasing the number of statutory holidays from 12 days to 17 days a year, abolishing the arrangement of using employers’ mandatory contributions under the Mandatory Provident Fund System to offset severance payments and long service payments, and raising the maximum penalty for violating occupational safety and health legislation are in the pipeline.

While fully respecting employees’ freedom of association, we firmly believe that no one is above the law. Every person must observe the law in force and respect others in exercising his or her rights and freedom. In respect of the arrests of certain Hong Kong SAR people mentioned in the Committee of Experts’ observations, it so happened that a small number of trade unionists were involved. To my understanding, their arrests had nothing to do with their participation in trade union activities.

The rule of law, underpinned by our independent and impartial judiciary, has all along been the cornerstone of the Hong Kong SAR’s continued success as a world-class city and an international financial centre. Please rest assured that all the accused will have access to impartial, fair and open trials before the courts.

As many of you know, between June 2019 and early 2020, the Hong Kong SAR was haunted by a series of violent protests and public disorder. Many shops, restaurants and businesses were targeted by extremists and vandalized, while thousands of others were forced to close. Rioters’ disregard for the rule of law not only damaged Hong Kong SAR’s reputation as a safe city and an international financial and business centre, but also affected many small businesses and threatened the livelihoods of innocent citizens.

It is against such a backdrop that the Hong Kong National Security Law was implemented in Hong Kong SAR. Many jurisdictions have national security laws in place. We welcome the implementation of the National Security Law, which has helped restore stability and sustain the Hong Kong SAR’s future development. We trust that with a safe and stable environment, the Hong Kong SAR will continue to attract investment, businesses and tourists from around the world. The National Security Law clearly stipulates that human rights shall be respected and protected. The rights and freedoms, including the freedom of association, provided under the Basic Law have remained intact and have not been affected in any way upon the enactment of the National Security Law. We have no doubt that employees in the Hong Kong SAR will continue as before to enjoy and exercise their rights to freedom of association to the fullest extent. As for employers, we will continue to enjoy the freedom to communicate and cooperate with other international employer groups.

Government member, Slovenia – I have the honour to speak on behalf of the following 26 countries: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czechia, Denmark, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden, which are also members of the European Union, as well as Norway.

We are committed to the promotion, protection, respect and fulfilment of human rights, including labour rights, the right to organize and to freedom of association. We actively promote the universal ratification and implementation of fundamental international labour standards, including the ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). We support the ILO in its indispensable role to develop, promote and supervise the implementation of ratified international labour standards and of fundamental Conventions in particular.

We regret that the fundamental freedoms, democratic principles and political pluralism, including fundamental principles and rights at work that are central to Hong Kong’s identity and prosperity, are under increasing pressure.

In line with the observations of the Committee of Experts, we call on the authorities to ensure that trade unionists are able to engage in their activities in a climate free of violence and intimidation, without the threat of police repression or arrest, and within the framework of a system that protects and guarantees the effective respect of fundamental rights and civil liberties and refrains from any interference which would restrict these rights and liberties.

In this regard, the imprisonment of pro-democracy figures, including trade unionist Lee Cheuk Yan, for non-violent acts when exercising protected civic rights is a troubling development.

As identified by the Committee of Experts, we note the possible negative effects that the application of the National Security Law may have on the rights enshrined in the Convention, and the need to monitor and provide information on the impact that the Law has already had, and may continue to have, on the application of the Convention.

In this context, we reiterate their grave concerns following the enactment of the National Security Law, both to the substance of the new legislation and to the process by which it was adopted, without any meaningful prior consultation of Hong Kong’s Legislative Council and social partners. We remain unsettled about the conformity of the new law with Hong Kong’s Basic Law and with China’s international commitments.

We similarly reiterate our grave concerns over the reform of the electoral system, which will have significant impact on democratic accountability and political pluralism in Hong Kong. We call upon China to uphold its international commitments also in this respect. We consider it essential that the existing rights and freedoms of Hong Kong’s residents are fully protected, including freedom of association, of assembly, of procession and of demonstration.

We are committed to the social stability and prosperity of Hong Kong and we will continue to follow the developments closely.

Government member, Cuba – Cuba notes the information provided by the Government of China to the effect that, faced with acts of violence, any responsible Government or law enforcement agency would be obliged to intervene in a legal manner in order to protect the citizens and their right to resume a normal life. The exercise of the rights set out in the Convention by workers, employers and their respective organizations, as well as by other persons or organized communities, requires full respect of the law of the country.

The information provided by the Government affirms that there is no proof that any person has been detained, persecuted, monitored or prosecuted for the exercise of trade union activities and that those who have been charged in this case benefit from similar procedural guarantees and have access to a just and open judgement. It also indicated that the National Security Law is in accordance with international practice and specifically provides that in safeguarding national security human rights shall be respected and protected.

As happens in all States, the promulgation of national legislation is in strict accordance with the international obligations undertaken and relevant means of action are established adapted to their situation. In the same way as in other countries, in order to respond to and control COVID-19, restrictive measures have been adopted to reduce infection in communities, including the prohibition to gather in groups, which must not be understood as a prohibition of the exercise of freedom of assembly and peaceful association.

My delegation reiterates the importance of dialogue and tripartism with a view to promoting trade union rights, and welcomes the information provided.

Employer member, Pakistan – It is the fundamental right of every workers’ organization to protest and lodge complaints against any violation of ILO Conventions. The representatives of employers’ organizations also possess the inalienable right to respond by presenting details, evidence and realities.

The case against the Hong Kong SAR is in the list of cases that is already truncated due to the work format as well as the shortened daily time frame. Without sounding condescending, are the deliberations on this case more crucial than other cases that are more vital and imperative?

It is essential that certain principal points must be taken into consideration in determining the complaint.

Firstly, it does not make practical sense that the Hong Kong SAR Government would violate the Basic Law that protects the right and freedom of association. If there is a contravention, there have to be cogent and rational reasons. This does not imply that contraventions are a matter of policy or a suppression of prescribed rights. The frequent protests, rallies and strikes seriously affected the economy, tourism, security, tradition and culture of Hong Kong. There is no ban on workers exercising their right to peaceful assembly, but this does not give carte blanche to ignore the country’s dynamics. It has to be established that infiltrators and anti-social elements took advantage of the genuine activities of trade unions and engaged in unlawful and illegal acts.

Therefore, it is proposed that the case be suspended.

Worker member, Germany – I am speaking on behalf of the German Confederation of Trade Unions (DGB), the Center of United and Progressive Workers (SENTRO) of the Philippines, the Netherlands Trade Union Confederation (FNV), the General Labour Federation of Belgium (FGTB) and the Trade Union Confederation of Workers’ Commissions (CCOO). The Committee of Experts requests the Government “to ensure that trade unionists are able to engage in their activities in a climate free of violence and intimidation and within the framework of a system that guarantees the effective respect of civil liberties”.

The rights under Article 3 of the Convention include, in particular, the right to hold trade union meetings and to organize protest action. They encompass as well certain political activities, such as expressing support for a political party considered more able to defend the interests of members, and having close contact and communication with international organizations of workers. The reality in the Hong Kong SAR is a far cry from this. Some examples: on May Day 2020 and 2021, HKCTU members who publicly distributed handouts and gave speeches were surrounded and cordoned off by dozens of police officers to cut the public off from them.

In March 2021, four members of the healthcare workers’ union who spoke publicly on vaccination precautions and privacy protections on the COVID-19 digital tracker were surrounded by police, asked for their ID, photographed and videotaped.

Unions hosting film screenings exclusively for members were visited by the Office for Film, Newspaper and Article Administration. Members attending the screenings were harassed and photographed by pro-Government media, and unions were forced to cancel the screenings.

Union leaders who represented their members in political elections were arrested last year and prosecuted for allegedly conspiring to subvert state power under the National Security Law. They had been campaigning for reforms in public spending, including health and welfare, and for the monitoring of international human rights standards in the Hong Kong SAR.

The prosecutions create a climate of intimidation and discourage trade unionists from participating in elections and advocating for democratic and social reforms.

We therefore call on the Government to immediately bring its practices and laws into compliance with the Convention.

Interpretation from Russian: Government member, Russian Federation – The Russian Federation fully shares the assessment made by the representative of the People’s Republic of China about compliance with the provisions of the Convention by the authorities in the Hong Kong SAR.

We believe that the authorities in that region are strictly observing the relevant provisions of the ILO Convention and are steadfastly attached to complying with requirements on submitting the necessary reports to the International Labour Office.

As to the allegations against the Hong Kong SAR authorities, we believe that they are political and unfounded. We believe that the authorities are taking legal measures to re-establish order and we do not consider that they are a threat to the freedom of association of the population of the territory. We hope that the Committee will note with satisfaction the detailed report provided on this issue, which has been provided by our Chinese partners, and bring an end to consideration of this question. We are, generally speaking, seriously concerned about the tendency in the ILO to link reports to internal events in a country. Such a practice will lead to the sharp politicization of both reports and decisions, and that will make it virtually impossible to ensure compliance with the decisions taken. In the end, this could constitute a threat to both the authority and reputation of the ILO. We urge the ILC and its committees to refrain from taking a biased and confrontational approach in favour of constructive and mutually respectful cooperation. That will make it possible to promote decent work and protect the interests of both workers and employers.

Employer member, Bangladesh – We take note that the Committee of Experts stated in the 2020 observations that workers’ and employers’ organizations in the Hong Kong SAR should have the right to organize their activities in full freedom and to formulate their programme with a view to defending the occupational interests of their members while respecting the law of the land, while at the same time the authorities should refrain from any interference which would restrict freedom of association and assembly or impede the lawful exercise thereof, provided that the exercise of these rights does not cause a serious and imminent threat to public order.

We take note of the Hong Kong SAR’s serious efforts in upholding the rule of law, as underpinned by its independent and impartial tradition. Any responsible government or law enforcement agency would be duty bound to intervene in a legal manner in order to protect citizens and their right to resume normal life. Every person must observe the law enforced when exercising his or her right of peaceful assembly.

The Basic Law has protected the right and freedom of association and the right and freedom to form and join trade unions in Hong Kong SAR. There is no detrition of the right and freedom of Hong Kong SAR residents to form and join trade unions. We understand the number of registered trade unions has actually increased by 56.5 per cent from 866 at the end of 2019 to 1,355 at the end of 2020. Labour rights and benefits in Hong Kong SAR have actually been improving progressively.

Finally, based on these facts we recommend that the Committee provide constructive observations for Hong Kong SAR to restore its resilient economy and sustainable development in a world-class city.

Worker member, United Kingdom of Great Britain and Northern Ireland – I speak on behalf of the Trades Union Congress (TUC) and the International Transport Workers’ Federation (ITF). Like freedom of association, collective bargaining is both a fundamental right in itself and an enabling right that improves access to decent work and to the protection of other ILO Conventions and is a corollary to the right to freedom of association protected under the Convention.

For years, the Committee of Experts has been requesting that the Government of Hong Kong SAR take new measures to encourage collective bargaining. The Government has declined to do so, claiming that bargaining in Hong Kong SAR takes place in a conducive atmosphere with agreements in, for example, the airline industry, but only 1 per cent of workers benefit from coverage by collective bargaining agreements.

As for airlines, the national flag carrier has now unilaterally ended the recognition and bargaining agreements that had underpinned years of constructive engagement with the Flight Attendants Union, to which 75 per cent of the company’s cabin crew belong. Compounding this abrogation of the company’s duties, collective bargaining, it argues, is “outdated” and “no longer relevant”. It also offered the union the chance to, “represent [its] members in a more effective way than in the past”. Such pronouncements seriously undermine the ability of unions to organize their activities and programmes in full freedom.

The Government claims its voluntary approach is successful, but voluntary collective bargaining rests on the respect for the independence of the parties, and here we have an employer of great significance to the Hong Kong SAR doing quite the opposite.

The real reason for ending the agreement is clear. Not only did the company abandon ten years of annual salary negotiations, it laid off 6,000 employees and pressured its workers to sign new conditions of service that cut their pay and benefits by up to 40 per cent and that contained a clause that any new agreement reached with the union would not apply to the whole workforce. The company may believe that the fundamental principles are no longer relevant, but I hope this Committee will disagree strongly, and it is the Government’s failure to act on the urging of the Committee of Experts, and its complacency over collective bargaining in the Hong Kong SAR, that have given the airline the green light to behave in a way contrary to the values of this house.

Government member, Pakistan – Pakistan appreciates the continuing commitment of the Government of China to implementing its Convention-related obligations and its commitment to implementing international labour standards, particularly the protection of the right to organize. It is encouraging that the HKSAR has taken a number of significant legislative and administrative steps to achieve these objectives. It has paid due attention to upholding the rule of law through its independent institutions and has ensured the enjoyment of rights, including freedom of association and collective bargaining.

We are cognizant of the responsibility of any government to maintain public order and ensure the safety of its citizens, including health security and safety in the special circumstances of a global pandemic. Measures taken in this context should not be misrepresented as unlawful curbs on freedom of association in the context of the Convention. We appreciate the good track record of Hong Kong SAR in complying with labour standards, which is evidenced by the presence of a vibrant international financial centre in the region.

All concerns and complaints should be settled amicably in the framework of tripartite cooperation. It is important to refrain from politicizing the work of the ILO supervisory mechanisms and this Committee. Our deliberations should be in line with the spirit of multilateralism, aimed at the implementation of labour standards in a non-political and objective manner.

Employer member, Uganda – I would like to appreciate the comments given by the Government representative. These are unprecedented times when we are confronted with a very serious health challenge, perhaps the worst of its kind in the past 100 years. Of course, as we have seen, governments in various parts of the world have had to put in place very stringent measures, including even the lockdown of business operations, but also social gatherings.

In some cases, there have also been requirements to register certain activities or organizations before they are allowed to operate. Therefore, freedom of association and all these other freedoms must be seen also in this light. For me, the politicization of government efforts anywhere for the purposes of security or health control measures is certainly not helpful at all.

Like we have seen in the case of China, Hong Kong SAR, we have seen that social dialogue has been rather productive, and that is clearly evident in the numbers that we have seen, a growth in the number of trade unions of over 50 per cent. We have also seen progress in the terms of collective bargaining agreements which are signed even during this period of lockdown, so it is important to disassociate issues of a labour nature from those of a political nature.

Worker member, Republic of Korea – I am speaking on behalf of the Korean Confederation of Trade Unions (KCTU). SENTRO and Kilusang Mayo Uno (KMU) of the Philippines, the Italian General Confederation of Labour (CGIL), the Canadian Labour Congress (CLC) and the Swiss Federation of Trade Unions (USS/SGB) align themselves with this statement.

Industrial action is the legitimate means of promoting and defending workers’ economic and social interests. Yet, strike action is narrowly defined in the Trade Unions Ordinance and does not cover solidarity actions. Moreover, strike action is not a protected form of union activities under the Employment Ordinance. The only statutory protection is to prevent employers from summarily dismissing striking workers, but nothing in the law prohibits employers from terminating the contract by notice.

In February of 2020, facing a potential public health risk due to the Government’s inaction on the pandemic, the Hospital Authority Employees Alliance called for a strike demanding assurances of a sufficient supply of personal protective equipment and the closure of all borders to contain the infection. Without meaningful social dialogue, the medical staff started a strike on 3 February and ended it on 7 February when the Government partially agreed to their demands. The workers made every effort on their own to minimize possible inconvenience to the public. The strike started with non-essential staff, and the provision of essential services was considered during the industrial action. The objective of the strike was to further their occupational interests, including safe working conditions, and the public interest, the protection of public health. This is a very legitimate collective action and a normal union activity. However, the Hospital Authority has never recognized the collective action as a strike, but treated it as “absence from duty” subject to disciplinary action. The targeted intimidation against the strikers is an act of anti-union discrimination that has a chilling effect.

I call on the Government to effectively promote and protect fundamental labour rights, including the right to organize a strike, to promote and defend workers’ economic and social interests and to shape public policies, which may impact on working conditions.

Government member, United States of America – The ability of individuals to freely exercise the right to freedom of association is a cornerstone of healthy and functioning societies everywhere. The 2019–20 public protests, including by trade union officials, highlight the challenges individuals continue to face in exercising these labour rights, human rights and fundamental freedoms in the Hong Kong SAR.

Specifically, the recent observations of the Committee of Experts cite allegations of police repression and arrests in connection to these public protests, including the arrest of HKCTU General Secretary, Lee Cheuk Yan, in 2019.

In June 2020, the National Security Law came into effect. The Committee of Experts noted allegations that the Law has been used to crack down on peaceful and legitimate protests. Further, we are aware of recent media reports that the Hong Kong SAR authorities have used this Law to arrest individuals in the context of peaceful gatherings, including the arrests of then-HKCTU Chairperson Carol Ng and Hospital Authority Employees Alliance Chairperson Winnie Yu.

The authorities submitted information to this Committee in response to concerns of non-compliance with the Convention, noting the National Security Law helped Hong Kong SAR emerge from “chaos into stability”.

While the Government credits the Law with an 85 per cent reduction in the number of people arrested for public order incidents in the first six months after the Law came into force, this reduction correlates to a decline in public gatherings due to the imposition of the threat of arrest under the new Law, a draconian enforcement of public order and public health regulations to restrict the right of peaceful assembly.

The effect of the Law has been to further suppress the exercise of the right to freedom of association, in stark opposition to obligations under the Convention. We urge the Hong Kong SAR authorities to take immediate action to meet their obligations under the Convention.

Interpretation from Russian: Worker member, Belarus – The Belarusian Federation of Trade Unions has studied the comments made by the Committee of Experts about compliance with the provisions of the Convention by the Hong Kong SAR. Let me start by saying that we, as unions, fully support the provisions of the Convention. In our opinion, the Hong Kong SAR is making serious effort to comply with the Convention. Provisions on freedom of association are reflected in its Basic Law. The growth in the number of registered trade unions between 2019 and 2020, from 866 to 1,355, shows the success of the situation. Furthermore, in accordance with the Trade Unions Ordinance, members and officials of trade unions enjoy immunity from civil suits for certain acts.

As to the arrest of trade unionists between 2019 and 2020, the facts show that these people participated in action which threatened public order and the national security of the country as a whole. What was done was legal. There is no connection with the freedom of association or their status as trade union leaders. The authorities acted in accordance with Article 8 of the Convention which states that, in exercising the right to the freedom of association, workers, employers and their organizations – like any other individuals or organizations – need to obey the law.

Political actions in Hong Kong SAR have been widely reported in the media, but in some cases, they did not actually get very objective press coverage. However, the facts show that there was no relationship with social or economic action. We therefore express the hope that the Committee of Experts will continue to cooperate in a positive spirit with the authorities of the Hong Kong SAR.

Government member, Islamic Republic of Iran – My delegation would like to thank the Government of Hong Kong SAR for submitting information on how the Government has intended to secure observance of the Convention. My delegation welcomes the measures undertaken by the Government to reinforce the right and freedom of Hong Kong residents to form and join trade unions. We take note of the statistics submitted on the creation of employee unions in the country. My delegation is of the view that the measures undertaken by the Government demonstrate willingness and commitment to enhancing the situation. Thus, these measures deserve the due consideration of the esteemed Committee.

Furthermore, due consideration should be given to the range of rights that trade union members and officers and employees enjoy under the Trade Unions Ordinance and the Employment Ordinance, and the recent improvements achieved regarding statutory maternity and paternity leave. Having said that, my delegation supports the efforts of the Government of Hong Kong SAR to increase compliance with the Convention.

Government member, Switzerland – In the first place, Switzerland wishes to convey its deep concern at the arrests made in Hong Kong SAR since 1997. Indeed, 1997 also coincides with a complaint by trade unions accusing the Chinese Government of the violation of the Convention. Since then, we have seen an increase in pressure on trade union rights and freedom of association.

The current legislative reforms, including the introduction of the new National Security Law, are endangering trade union freedoms. This has led to the restriction of the operation of unions, the repression of freedom of association and the limitation of freedom of expression and social dialogue. Moreover, for the first time in the existence of the Hong Kong SAR, there have been prosecutions in this connection. The Committee of Experts made several recommendations on these subjects between 1989 and 2020.

Switzerland calls on China to give effect to the recommendations of the Committee of Experts. Switzerland also takes this opportunity to recall the obligations deriving from the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted at the 86th Session of the International Labour Conference in 1998, to respect, to promote and to realize the principles concerning fundamental rights. Switzerland encourages the Chinese Government, following the example of the Hong Kong SAR, to ratify the ILO fundamental Conventions on freedom of association and the effective recognition of the right to collective bargaining, Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as well as the Forced Labour Convention, 1930 (No. 29), and its Protocol of 2014.

Freedom of association is one of the four fundamental principles and rights at work, an essential element of social justice. In this regard, Switzerland calls on the Chinese Government to free the trade unionists who have been arrested and to take the necessary measures to ensure that effect is given to the recommendations of the Committee of Experts. Switzerland also recalls that this case is under examination by the Committee on Freedom of Association.

Government member, Zimbabwe – Zimbabwe has listened carefully to the statement made by the representative of the People’s Republic of China and appreciates the explanations given on each of the issues that were raised by the Committee of Experts. Indeed, this is one of the many cases which this august Committee deals with that require us to exercise our minds, distinguishing between political agitations that fall outside the scope of the ILO supervisory bodies and those that are within their competencies.

Our approach in this Committee ought to be guided by the positions articulated by the Committee on Freedom of Association. To this end, Zimbabwe would like to draw the attention of this Committee to the following guiding principles articulated in the sixth edition of the Compilation of the Decisions of the Committee on Freedom of Association, published in 2018: supervisory bodies of the ILO, including this Committee, have no mandate to consider purely political allegations; strikes of a purely political nature do not fall within the protection of Conventions Nos 87 and 98; and the Committee on Freedom of Association would not have competence over a national civic work stoppage which is exclusively political and insurrectional. These principles resonate with the elements in this case, in the case that we are discussing, therefore we ought to respect them.

Last but not least, we should also be mindful of the fact that while freedoms are fundamental, they are not absolute. Accordingly, a State has an obligation not only to protect the rights of other citizens, but also to protect property during demonstrations that are political or that are mounted for other reasons.

Interpretation from Russian: Government member, Belarus – We would like to thank the Chinese delegation for its exhaustive report. Belarus has noted the systematic and positive approach by the Government of the People’s Republic of China to strengthening social and labour relations in the Hong Kong SAR. We believe that the Chinese Government is carefully monitoring and complying with its obligations under the Convention.

Furthermore, it actively and constructively cooperates with the ILO. We agree with what the Chinese delegation has said, to the effect that every individual, when exercising his or her rights to the freedom of assembly, should respect the law in force. The enjoyment of the rights referred to in the Convention should not be accompanied by a serious and direct threat to public order; they should be exercised in full respect and observance of national law. If that is not the case, then the forces of law and order have the right to re-establish public order in the Hong Kong SAR, as in any other city or region around the world.

We also believe that the law adopted by the Chinese Government on national security in the Hong Kong SAR is in line with international practice. It has been transparently and openly studied, taking into account the interests of those who live in the Hong Kong SAR. We therefore think that the comments of the Chinese Government on both their application of the Convention and their action are fully in line with international labour legislation.

Government member, United Kingdom of Great Britain and Northern Ireland– The United Kingdom supports the role of the ILO in developing, promoting and supervising the application of international labour standards and of fundamental Conventions in particular. We are committed to the promotion, protection and respect of human rights and labour rights, as safeguarded by the fundamental ILO Conventions and other human rights instruments, and to the ratification, effective implementation and enforcement of the core labour standards.

The United Kingdom remains concerned at the situation in the Hong Kong SAR, in particular at a pattern of behaviour by Beijing and the Hong Kong SAR Government intended to stifle dissent and suppress the expression of alternative political views. The National Security Law, imposed on the Hong Kong SAR last June, is not being used for its stated original purpose, which was to target just “a tiny number of criminals who seriously endanger national security”.

Instead, it is being used to curtail the space for the expression of alternative political views and deter freedom of expression and legitimate political debate. China has broken its legal obligations by undermining the Hong Kong SAR’s high degree of autonomy, rights and freedoms, which are guaranteed under the Sino-British Joint Declaration, a legally binding international treaty. In this context, we note with concern reports that the Hong Kong SAR’s Labour Department has proposed creating an additional position of chief labour officer, whose responsibilities would include ensuring the compliance of trade unions with the National Security Law.

The United Kingdom notes that the right to form and join a trade union is guaranteed under the Hong Kong SAR’s Basic Law, as is the right of procession and demonstration.

As a co-signatory to the Joint Declaration, we will continue to stand up for the people of the Hong Kong SAR, to call out the violation of their freedoms, and to hold China to the international obligations it freely assumed under international law.

Government member, Ethiopia – My delegation has taken due note of the statement delivered by the representative of the Government of the People’s Republic of China with respect to the application of the Convention in law and in practice.

We took note from the information provided by the Government of China that the Hong Kong SAR’s Basic Law guarantees the right to organize and form an association of their choosing for Hong Kong SAR residents, in conformity with the Convention. In light of this, we attentively heard that the number of registered trade unions has increased, from 866 in 2019 to 1,355 in 2020.

Furthermore, we are encouraged by the report of the Government of China that, in the Hong Kong SAR, statutory maternity leave has been extended from 10 weeks to 14 weeks, and statutory paternity leave has been extended from 3 days to 5 days, with the aim of striking a balance between working time and parental/family responsibilities.

We also learned from the Chinese Government intervention that as primary duty bearer to safeguard national security and uphold the public measures taken against protests that took place in the Hong Kong SAR in 2019, there are stringent guidelines on the use of force.

In view of the above, the efforts made so far and the measures taken by the Hong Kong SAR towards enhancing the right to organize and form an association are encouraging in terms of the full application of the Convention under discussion. We encourage the ILO to step up its technical assistance to complement the Chinese Government’s efforts to ensure the conformity with the Convention of national laws and practice. In conclusion, we hope that the Committee in its conclusions will take into consideration the invaluable information provided by the Government of China and all constructive comments and discussions that have transpired in this sitting.

Government member, Bolivarian Republic of Venezuela – The Government of the Bolivarian Republic of Venezuela thanks the Government of China for the intervention on compliance with the Convention in the Hong Kong SAR.

The Government of China referred to acts of violence and damage caused during the public protests in 2019 and 2020, which obliged it to safeguard order and public security within the framework of its legislation. The Government also provided figures emphasizing the increase in the number of unions under the Basic Law of the Hong Kong SAR, which was noted positively in the 2021 report of the Committee of Experts.

We recall that freedom of association has to be exercised in accordance with the laws of each country, and that purely political activities, such those intended to undermine or destabilize a government, do not benefit from the protection envisaged in the Convention.

We call on the ILO supervisory bodies to leave aside political considerations, otherwise they will go beyond the limits in their comments, which will affect their seriousness and credibility and damage the noble objective of our Organization. We regret that the Committee of Experts is of the view that in this case unions can participate in certain political activities, expressing support for political parties of their choosing. Moreover, in relation to other countries, we know of opinions expressed by ILO supervisory bodies and mechanisms that governments must ensure the independence of trade unions in relation to party political action. This disparity of criteria cannot be used to claim to give lessons to governments in their sovereign role of maintaining peace and public order.

Finally, the Government of the Bolivarian Republic of Venezuela hopes that the Committee’s conclusions will be objective and balanced, with a view to the Government of China continuing to make progress in giving effect to the Convention in the Hong Kong SAR.

Employer member, Democratic Republic of the Congo – We endorse the observations made by the Committee of Experts, in the sense that there is real concern regarding the use made of article 23 of the Basic Law, which the Government uses as a basis for the adoption of laws that not only impede the right of workers and employers to establish organizations of their own choosing, but also to join those organizations, in breach of Article 2 of the Convention. Moreover, the right to organize the administration and activities of occupational organizations without interference by the public authorities is infringed through the use made of this provision as the public authority, which is not consistent with Article 3 of the Convention.

We also express concern at the practices of anti-union dismissals, threats of dismissal in the context of public demonstrations and violations of the right to collective bargaining, in breach of Convention No. 98. We endorse the observations made by the Committee of Experts to the Government calling on it to take the necessary measures, in consultation with the social partners, with a view to the strengthening of the framework of legislation, regulations and agreements relating to collective bargaining, especially in the public sector, including for public servants, teachers and employees of public enterprises.

However, the employers of the Democratic Republic of the Congo request the Government not to respond to the comments of the Committee of Experts that coincidentally make reference to the right to strike, which is a matter for national law.

Government member, Bangladesh – The delegation of Bangladesh has carefully gone through the observations made by the Committee of Experts and the regional information provided by the Government of the Hong Kong SAR. We have also taken due note of the statement delivered by the People’s Republic of China.

We appreciate the continued efforts made by the Government of China in the Hong Kong SAR to comply with international labour standards, including the Convention. Particularly, we welcome the measures taken by the Government to protect the right to freedom of association and the rights and freedom of Hong Kong SAR residents to form and join trade unions.

In this respect, we note with appreciation the increase in the number of trade unions of more than double from the end of 2019 to the end of 2020. We hope that the amendment of the Employment Ordinance will help further protect and promote the rights of the workers in relation to trade unions. We also appreciate the incremental progress made in the area of addressing anti-union discrimination in the Hong Kong SAR, including through the implementation of the Trade Unions Ordinance and empowering the courts and the labour tribunals. The extension of statutory maternity and paternity leave is also a positive step towards upholding labour rights in the Hong Kong SAR.

We are confident that the Government of the Hong Kong SAR will continue to maintain its close cooperation with the Office and make sustained efforts to further improve compliance with international labour standards, which has already made the Hong Kong SAR an international financial centre and a global business hub.

Observer, Public Services International (PSI) – The National Security Law that was passed last year seems to impose new restrictions on the exercise of freedom of association. In the case of public servants, this would be very problematic, and would add further pressure on their activities. For instance, the Civil Service Code and Regulations already subject civil servants to a disciplinary procedure if they voice opinions deemed to be of a political or administrative nature.

Also, workers directly employed by the Government in the Hong Kong SAR are explicitly excluded both from the Employment Ordinance and the application of Article 6 of Convention No. 98. Therefore, they have no access to the remedies for anti-union discrimination or collective bargaining enjoyed by workers in other sectors.

On top of this, all civil servants have been required to take an oath, sign a declaration of loyalty to the Government and abide by the laws in the Hong Kong SAR. This requirement has been extended to the National Security Law. We understand that civil servants who do not take the oath will be dismissed. The implications of all these restrictions for civil servants are so severe that the leaders of the Union for New Civil Servants determined that it was impossible to effectively represent members and disbanded in January 2021.

According to the Government, and I quote from the Committee of Experts’ report, “what the National Security Law seeks to prevent … are distinctly different from normal interactions (including normal associations between trade unions in Hong Kong and international organizations)”.

So we hope that the Government will live up to this promise and also amend all the legislation restricting freedom of association, as requested by the Committee, because when public servants lose the right to freedom of association and expression, the public loses a vital pillar in democratic governance and defence of the rule of law. Civil servants in the Hong Kong SAR will no longer be able to blow the whistle on corruption or on poor public policy, including dangerous public health decisions, without fear of dismissal, or even prison.

Observer, International Trade Union Confederation (ITUC) – I am speaking on behalf of the HKCTU. The application of the Convention requires a domestic legal framework that enshrines the rights fully and an enabling environment that respects and allows the exercise of civil liberties. The Government is obliged to ensure consistency and compliance among laws and policies.

As the Committee of Experts pointed out, trade unions have marginalized representation in the workplace in the Hong Kong SAR without a legal framework to recognize unions and to bargain collectively with employers. Civil remedies to address anti-union discrimination are ineffective, as compensation may be in lieu of reinstatement and civil servants are excluded. In the last two years, the Government has banned Labour Day rallies, protests against an airline’s mass lay-offs, and a solidarity march by the Hong Kong Journalists Association following the arrest of one of their members and the sentencing of trade unionists under draconian laws, including the Public Order Ordinance.

Since the enforcement of the National Security Law last year, workplace conduct has been aligned with the law in some sectors, such as an oath through which civil servants commit to abiding by the law and a new police-run hotline for anonymous reports that include complaints regarding teachers’ conduct. Last month, the Labour Department announced that it is expanding its size to enforce the law among the trade unions, using the threat of deregistration.

Workers in the Hong Kong SAR are reluctant to speak out and associate under the prevailing uncertainties, self-censorship, fear of surveillance and sanctions. Trade unions cannot exercise our rights, organize activities freely or defend members without fear of crossing the invisible red line. We echo the observations of the Committee of Experts that urge the Government to assess, as far as the application of the Convention is concerned, the impact of the National Security Law and its enforcement on trade unions and the workplace.

Government representative – I would like to thank all delegates for their contribution to the discussion of our case. The Government of the Hong Kong SAR of the People’s Republic of China took note of the Committee’s observations and will address them in detail in our next report on the application of the Convention. That said, I would like to take this opportunity to reiterate the Hong Kong SAR Government’s views.

First and foremost, I must stress that our Government takes our obligations under the International Labour Conventions seriously. In respect of the Convention, we are fully committed to protecting workers’ rights to form and join trade unions, and their participation in union activities.

As I have mentioned earlier, the rights of Hong Kong residents to form and join trade unions are guaranteed under the Basic Law of the Hong Kong SAR of the People’s Republic of China. These rights have remained intact and have not been affected in any way upon the enactment of the Hong Kong National Security Law. Indeed, the continued increase in the number of registered trade unions in the Hong Kong SAR over the years bears testimony to the freedom and rights of Hong Kong residents to organize among themselves.

Under our labour laws, there is robust and adequate protection against discrimination against labour unions. We accord high priority to investigating complaints on suspected acts of anti-union discrimination. Our Government does not, and will never, tolerate any breach of the law by employers in this respect. We will not hesitate to initiate prosecution whenever there is sufficient evidence to pin down the offenders.

On labour rights and benefits, we have been reviewing our labour legislation from time to time through tripartite consultations among the Government, workers’ organizations and employers’ organizations, with a view to making continued improvements to labour rights and benefits, while striking a balance between the interests of employees and employers.

Just to name a few, in recent years, statutory maternity leave has been extended from 10 weeks to 14 weeks, and statutory paternity leave has been extended from 3 days to 5 days. The Labour Law has also been amended to empower the Labour Tribunal and the courts, in case of unreasonable and unlawful dismissals, which include dismissals by reason of exercising the right to trade union membership or participation in trade-union activities, to make a compulsory order for reinstatement or re-engagement of an employee without having first to secure the agreement of the employer.

In exercising the rights enshrined in the Convention, everyone shall respect the law of the land. Any society that upholds the rule of law cannot possibly accept anyone to be put above the law or having the privilege of breaking the law without facing legal consequences. If there is any illegal act, any responsible law-enforcement agency must deal with it based on evidence and in strict accordance with the law. The Hong Kong SAR Government must emphasize that such enforcement actions are directed against the criminal act itself, irrespective of the social status of the persons concerned or whether they are trade unionists. The Hong Kong authorities have been handling, and will continue to handle, all criminal offences in a fair and impartial manner.

The Hong Kong SAR Government respects citizens’ freedom of speech and expression. Their rights of procession and peaceful assembly are protected by the Basic Law and the Hong Kong Bill of Rights Ordinance. The Hong Kong Police Force have always been handling applications for public meetings or processions in strict accordance with the statutory requirements under the Public Order Ordinance and having regard to all relevant facts and circumstances in each application.

Coming to the Hong Kong National Security Law, let me stress again that Hong Kong people have been enjoying, and will continue to enjoy, the rights and freedoms as provided for under the Basic Law. In this regard, any law enforcement actions taken by the law enforcement agencies for suspicion of breaches of any national security offences must be based on evidence, in strict adherence to the law and focused on the criminal acts committed by the persons or entities concerned.

A number of speakers referred to the arrests of members of trade unions by the Hong Kong law enforcement agencies in relation to public order events. We would like to emphasize that any arrest and prosecution under any law, including the Hong Kong National Security Law, is directed against the criminal act itself and has nothing to do with the political stance, background or the status as trade union leaders. The principle of rule of law is upheld in Hong Kong, and will continue to be upheld in future. The Hong Kong court, which enjoys independent judicial powers, has made rulings on some of the prosecutions made and convicted the defendants. This proves that the prosecution actions were fully justified. The Hong Kong SAR Government will continue to handle every case in a fair, just and impartial manner in accordance with the law.

In the days ahead, the Hong Kong SAR Government will continue to strengthen publicity and education so as to enhance Hong Kong people’s understanding of national security and law-abiding awareness, and also deepen the understanding of the international community on the Hong Kong National Security Law.

The Hong Kong SAR Government is fully committed and attaches high priority to safeguarding workers’ rights to form and join trade unions and take part in union activities. We assure the Committee of our Government’s continued compliance with all the obligations of International Labour Conventions applied to the Hong Kong SAR. We will continue to submit our article 22 reports and provide the Committee of Experts with the information requested.

Interpretation from Chinese: Another Government representative, China – The Chinese Government supports the response and the introduction of the Hong Kong SAR Government and we can see that Hong Kong Government attaches great importance to the protection of workers’ rights and has done very rigorous work in the implementation of all International Labour Conventions that apply to the Hong Kong SAR, including Convention No. 87.

We support Hong Kong SAR Government’s efforts in obtaining social security and stability and protecting workers’ legitimate rights and interests. After the implementation of the National Security Law for Hong Kong, there is great and far-reaching significance in upholding and improving the system of one country two systems, ensuring the long-term security, stability, prosperity of Hong Kong and protecting human rights of Hong Kong residents.

This law plugs the legal loophole’s ability to national security in Hong Kong SAR and positive results have been achieved. Social order has been restored and the safety of people’s lives and their property and their legitimate rights and freedoms are further protected.

During the discussion, some speakers made irrelevant statements, for example, the United Kingdom Government representative. We reject his groundless accusations.

I would like to note that after the return of Hong Kong, all provisions related to the UK as stipulated in the Sino-British Joint Declaration have been implemented fully.

I would like to urge the UK Government, please stop interfering in China’s internal affairs.

Employer members – We have listened very carefully to the discussion in the Committee today. We thank all of the speakers who have taken the floor and we have taken note of the statements made and information provided. We would like to thank the Government representatives for positively engaging with this Committee and providing us with comprehensive and up-to-date information on the case, both in writing and in their oral submissions before the Committee.

Taking into account the full discussion, the Employer members invite the Government to provide information regarding the outcome of procedures to examine the police action and arrests made in connection with the protests that fall only under the scope of the Convention.

Also, the Employer members invite the Government to take all necessary measures to further guarantee the right of employers’ and workers’ organizations to organize their activities.

Furthermore, in respect of the newly adopted National Security Law of June 2020, the Employer members invite the Government to keep under review, jointly with the social partners, the application of the National Security Law so that the rights of employers, workers and their organizations under the Convention can be protected. The Employer members invite the Government to continue to provide up-to-date information on the impact that Law has on the application of the Convention both in law and in practice.

Therefore, in conclusion, we would like to once again thank the speakers in this discussion, and in particular to thank the Government representative from the Hong Kong SAR, for their constructive engagement in the work of the Committee and for all of the detailed information that is both up to date and responsive to the inquiries and for providing this information to our Committee today.

Worker members – We note the comments of the authorities responsible for China – Hong Kong SAR and we also appreciate all the relevant interventions during this discussion, but we must emphasize that the Government has an obligation to respect international labour standards and the guidance provided by the Committee of Experts in line with their mandate.

We are deeply concerned by the acute deterioration of the labour rights situation in Hong Kong SAR. The Government of China must ensure that trade unionists in Hong Kong SAR are able to engage in their activities in a climate free of violence and intimidation, and within the framework of a system that guarantees the effective respect of civil liberties.

Provisions of the Public Order Ordinance and of the Cap. 599G Prevention and Control of Disease (Prohibition on Group Gathering) Regulation must be immediately amended, in consultation with the social partners, in order to ensure that trade unions can freely exercise the right to freedom of assembly and demonstration in compliance with the Convention.

The National Security Law and its application in practice must be thoroughly assessed by the Committee of Experts, and to that end we call on the authorities to provide a report to the Committee of Experts before its next sitting. The authorities must provide a report on the number of people arrested and prosecuted under the various pieces of public order and national security legislation and the relevant court decisions to the Committee of Experts at their next sitting.

We must emphasize that peacefully participating in a protest for the realization of economic and social interests, including for democracy and respect for civil liberties, are legitimate trade union activities that the authorities must guarantee for all workers. We call on the authorities to report to the Committee of Experts before its next sitting on all measures taken to ensure that the police and other security forces respect trade union rights in accordance with the Convention.

The authorities responsible for the Hong Kong SAR must also ensure that labour laws applicable to the territory fully comply with the Convention. We strongly urge the responsible authorities to accept a direct contacts mission from the ILO to address the urgent and acute situation regarding the application of the Convention in the territory.

Conclusions of the Committee

The Committee took note of the written and oral information provided by the Government representative and the discussion that followed.

Taking into account the discussion, the Committee calls on the Government to:

• provide full information regarding the outcomes of procedures to examine the police action and arrests made in connection with protests which fall under the scope of the Convention;
• take all necessary measures to further guarantee the right for workers’ and employers’ organizations to organize their activities in line with the Convention and to ensure that trade union leaders and trade union members conducting lawful trade union activities are not arrested, detained or prosecuted;
• keep under review, in consultation with the social partners, the application of the National Security Law so that the rights of workers, employers and their organizations under the Convention are fully protected; and
• continue to provide up-to-date information on the impact that the National Security Law has on the application of the Convention.

The Committee calls upon the Government to provide up-to-date information to the Committee of Experts before its November 2021 meeting.

Government representative – I would like to thank once again the social partners and Governments for their constructive discussion of our case. We take note of their comments and the conclusion of the Committee.

Hong Kong is a society respecting and upholding the rule of law. Arrests and prosecutions are directed against criminal acts based on evidence and according to the law and have nothing to do with a person’s political stance, social background or trade union membership.

The rights and freedoms of employers’ and workers’ organizations to organize activities are also adequately protected by the laws of the Hong Kong SAR. These rights and freedoms have remained intact and have not been affected in any way upon the implementation of the Hong Kong National Security Law.

The Hong Kong National Security Law clearly stipulates that human rights shall be respected and protected in safeguarding national security in the Hong Kong SAR, and the rights and freedoms, including freedom of association which Hong Kong SAR residents enjoy under the basic law and the relevant international human rights conventions shall be protected in accordance with the law.

We would like to reaffirm the commitment of the Hong Kong SAR Government to fully implement the international labour Conventions applicable to the Hong Kong SAR. The Hong Kong SAR Government will continue to provide updates to the issues raised by the Committee of Experts.

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The Committee notes the observations of the International Trade Union Confederation (ITUC) dated 26 August 2009 and 9 September 2009 concerning discrimination of the authorities against the Hong Kong Confederation of Trade Unions (HKCTU) and limited protections for the right to strike. The Committee requests the Government to provide its comments with regard to these issues in its next report.

The Committee previously noted the proposals to implement article 23 of the Basic Law which, among others, would allow for the proscription of any local organization which was subordinate to a mainland organization, the operation of which had been prohibited on the grounds of protecting the security of the State. The Committee previously expressed the firm hope that any further action on proposed legislation to implement article 23 of the Basic Law would take fully into account the provisions of this Convention, in particular, the right of workers and employers to form and join the organization of their own choosing and to organize their administration and activities free from interference by the public authorities. The Committee notes that the Government indicates in its report that article 27 of the Basic Law guarantees that residents of the HKSAR shall have freedom of association and the right and freedom to form and join trade unions, while article 18(1) of the Hong Kong Bill of Rights, as set out in 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 notes that the ITUC indicates that several substantive changes have been made to the draft text of article 23 but that there has not been an announced timetable for enactment of the bill. The Committee requests the Government to include in its next report a copy of the draft bill for article 23 of the Basic Law and to indicate any progress made in the enactment of the bill.

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The Committee takes note of the Government’s report.

In its previous comments, the Committee had taken note of the comments made by the Hong Kong Confederation of Trade Unions (HKCTU) and the International Confederation of Free Trade Unions (ICFTU) concerning the proposals to implement article 23 of the Basic Law which among others, would allow for the proscription of any local organization which was subordinate to a mainland organization, the operation of which had been prohibited on the grounds of protecting the security of the State. The Committee observed that the proposals to implement article 23 had apparently been postponed and expressed the firm hope that any further action on proposed legislation to implement article 23 of the Basic Law would take fully into account the provisions of this Convention, in particular, the right of workers and employers to form and join the organization of their own choosing and to organize their administration and activities free from interference by the public authorities.

The Committee takes note of the Government’s statement in its latest report to the effect that it has no predetermined timetable to implement article 23 of the Basic Law at this stage and that it is committed to securing the community’s support and consensus before taking forward the article 23 exercise; the Government is also committed to upholding all fundamental rights and freedoms, including freedom of association and the right to form and join trade unions, guaranteed under the Basic Law and international labour Conventions as applied to the Hong Kong Special Administrative Region.

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The Committee takes note of the Government’s report. It also takes note of the comments made by the Hong Kong Confederation of Trade Unions (HKCTU) and the International Confederation of Free Trade Unions (ICFTU) concerning the proposals to implement article 23 of the Basic Law. While noting the Government’s extensive reply to the ICFTU communication and observing that the proposals to implement article 23 have apparently been postponed, the Committee notes with concern the comments raised by the HKCTU and ICFTU in respect of the draft provisions which, among others, would allow for the proscription of any local organization which is subordinate to a mainland organization, the operation of which has been prohibited on the grounds of protecting the security of the State. The Committee notes in this respect the Government’s indication that the Bill expressly provides for a number of safeguards in respect of the proscription mechanisms and further notes its strong affirmation that there is no question of the National Security Bill endangering the independent trade union movement in Hong Kong. The Committee therefore expresses the firm hope that any further action on proposed legislation to implement article 23 of the Basic Law will take fully into account the provisions of this Convention, in particular, the right of workers and employers to form and join the organization of their own choosing, and to organize their administration and activities free from interference by the public authorities.

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The Committee notes the Government’s report on the application of the Convention in Hong Kong SAR. Noting the Government’s indication that the number of registered trade unions amounted to 661 as at 31 May 2002, representing a 29 per cent increase over the past ten years, the Committee asks the Government to provide any available statistics on the number of registered employers’ organizations.

The Committee notes that according to the registered modifications on the application of Article 3 of the Convention, the amalgamation of trade unions is subject to the consent of the public authority where either of the trade unions is a member of an organization established outside the territory. The Committee notes however, that according to section 30 of the Trade Union Ordinance, the prior consent of the public authority seems to be required also in cases of amalgamation between all trade unions. The Committee asks the Government to specify what is the applicable procedure for the amalgamation of trade unions which are not members of organizations outside the territory of Hong Kong SAR and to indicate the manner in which the prior consent requirement under section 30 is applied to such cases.

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The Committee notes the comments transmitted by the Federation of Civil Service Unions to the effect that the national legislation authorises the establishment of federations of trade unions only when all the members belong to the same trade, occupation or industry, contrary to Article 5 of the Convention.

The Committee notes in this connection that the Government of the United Kingdom, which ratified Convention No. 87 for the United Kingdom in 1949, at first reserved its decision concerning the declaration of the applicability of this Convention to Hong Kong in a communication dated 29 December 1958. The Government of the United Kingdom then withdrew this reservation and declared Convention No. 87 applicable to Hong Kong with modifications concerning Articles 3, 5 and 6 of the Convention in a communication dated 15 October 1963. It renewed its declaration of the applicability of Convention No. 87 with the same modifications in a communication dated 4 June 1979. The modifications provide, inter alia, that any federation may be established only by trade unions whose members belong to the same trade, occupation or industry.

The Committee notes that under the terms of article 35 of the Constitution of the ILO, each Member which ratifies a Convention shall as soon as possible after ratification communicate to the Director-General of the ILO a declaration stating, in respect of the non-metropolitan territories for which it is responsible for the international relations, the extent to which it undertakes that the provisions of the Convention shall be applied. Each Member which has communicated a declaration of this type may from time to time, in accordance with the terms of the Convention, communicate a further declaration modifying the terms of any former declaration.

The Committee notes that in this case the Government of the United Kingdom availed itself of the right conferred upon it by article 35 of the Constitution of the ILO by specifying in 1963 and in 1979 the modifications to the provisions of Convention No. 87 that it considered necessary to adapt the Convention to local conditions.

The Committee nevertheless requests the Government to examine the comments made by the Federation of Civil Service Unions and to communicate its observations and comments on this subject in view of the fact that the application of Articles 3, 5 and 6 of the Convention without modifications would permit workers' organisations to establish and join federations and confederations of their own choosing.

The Committee also recalls that it addressed a direct request to the Government in March 1989, concerning which it will continue its examination on the basis of the Government's report for the period ending 30 June 1990.

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The Committee takes note of the report of the Government. It notes that the review of the Trade Unions Ordinance, to which the Government referred in its previous report, has now been completed. It observes that among the issues examined in the course of the review was the possibility that trade unions should be given the right to appeal to the courts against a decision by the Registrar to refuse to register new rules or amendments to existing rules. The Government considers that certain of the proposals emanating from the review could have long-term implications for the political, economic and social situation in Hong Kong and that as such they require further consideration. The Committee notes with regret that the Government also considers that since there have never been any complaints against decisions of the Registrar to refuse to register new rules or amendments to existing rules, there is no urgent need to introduce this particular amendment at this stage.

The Committee must again point out that it is essential for purposes of Article 2 of the Convention that unions should have such a right of appeal as a safeguard against any unlawful or ill-founded decision (see paragraphs 117 and 118 of its 1983 General Survey).

The Committee asks the Government:

(a) to indicate whether it regards the proposed right of appeal against refusals to register new rules or changes to existing rules as one of the matters which could have such long-term implications for the political, economic and social situation in Hong Kong as to require further consideration and, if so, why;

(b) to indicate whether it considers that decisions of the Registrar in relation to new rules or changes to existing rules are subject to judicial review by means of prerogative orders;

(c) to keep it informed of developments in the situation, and

(d) to supply a copy of the new legislative texts if and when they are adopted.