Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) - China - Hong Kong Special Administrative Region (Ratification: 1997)

Other comments on C144

Observation

Direct Request

2004

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The Committee notes the observations made by the Hong Kong Confederation of Trade Unions (HKCTU), received on 1 September 2016, in which the HKCTU expresses its continued concerns regarding ineffective consultation in relation to the current electoral system for representation on the Labour Advisory Board (LAB), the designated body for tripartite consultations within the meaning of the Convention. The HKCTU maintains that, despite being the second largest trade union confederation in the country, it continues to be excluded from the LAB as a result of the electoral system in place, and in contravention of the provisions of the Convention.

Articles 2(1) and 5(1) of the Convention. Effective tripartite consultations. The Government indicates in its report that the LAB’s Committee on the Implementation of International Labour Standards (CIILS) was consulted on all the reports to be submitted under article 22 of the ILO Constitution and on all replies to this Committee. The Government further indicates that the report covering the activities of the LAB for 2015–16 will be available by mid-2017. The Committee requests the Government to continue to provide up-to-date information on the nature and content of the consultations held on the matters concerning international labour standards covered by the Convention.

Article 3(1). Election of representatives of the social partners to the Labour Advisory Board. The Government reaffirms its commitment to ensuring effective tripartite consultations on labour matters, as well as its understanding that the most representative organizations of employers and workers as defined in the Convention should be free to choose their representatives for purposes of tripartite consultations. The Government indicates that the method of electing employee representatives involves all registered employee unions with the right of freedom of association, including those affiliated to the HKCTU, and that all enjoy the same right to nominate candidates to the LAB and to vote through secret ballot. The Government therefore considers that the current electoral method strictly follows the principle of free choice by trade unions, is transparent and widely accepted in the labour sector, and is most suited to local conditions. The Government explains that representatives of employers and employees participate equally in various committees under the auspices of the LAB, and that members from different trade union groups, including the HKCTU, have been appointed to participate in some of these committees to give advice on labour matters.

In contrast, the HKCTU considers the electoral system to be unjust. It notes that the LAB has six employee representatives, five of whom were elected by registered trade unions, with a sixth appointed ad personam by the Government. Union votes are counted with equal weight regardless of size of membership according to the principle of “one union, one vote”. Moreover, voters are allowed to vote for a slate of five candidates in one ballot, hence the securing of more than half of the votes would allow a slate of five candidates to win all five seats. The HKCTU maintains that this electoral system is unjust and has prevented it from being elected to the LAB, despite its status as the second largest trade union confederation, representing over 195,000 workers from 95 affiliates. In 2014, the HKCTU informed the Chief Executive of the Hong Kong Special Administrative Region Government of the system’s shortcomings, challenging the composition of the LAB. Subsequently, in 2015, the HKCTU pointed out the system’s drawbacks to the Commissioner of Labour and recommended replacing the electoral system with one which would take into account the membership of trade unions and allow for proportional representation. The current electoral system, however, remains in place.

The Committee recalls that the term “most representative organizations of employers and workers”, as provided for in Article 1 of the Convention, “does not mean only the largest organization of employers and the largest organization of workers”. In its 2000 General Survey on tripartite consultations, paragraph 34, the Committee refers to Advisory Opinion No. 1 of the Permanent Court of International Justice, dated 31 July 1922, in which the Court established that the use of the plural of the term “organizations” in Article 389 of the Treaty of Versaillles referred to both organizations of employers and workers. Based on this opinion, the General Survey clarified that the term “most representative organizations of employers and workers” does not mean only the largest such organization. If in a particular country there are two or more organizations of employers or workers which represent a significant body of opinion, even though one of them may be larger than the others, they may all be considered to be “most representative organizations” for the purpose of the Convention. The Government should endeavour to secure an agreement of all the organizations concerned in establishing the tripartite procedures (2000 General Survey on tripartite consultations, paragraph 34). The Committee is concerned that, under the process of voting for a slate of labour organization candidates described by the HKCTU, there is a risk that the second largest trade union confederation in the country may have been excluded from meaningful participation within the most representative organization of workers. Recalling its previous observations in this regard, the Committee calls upon the Government to make every effort, together with the social partners, to ensure that tripartism and social dialogue are promoted and strengthened so as to facilitate the operation of the procedures which ensure effective tripartite consultations (Articles 2(1) and 5(1) of the Convention). It requests the Government to provide information on all measures taken or envisaged to ensure the HKCTU’s meaningful participation as part of the consultative process within the most representative organization of workers. The Committee requests the Government to report on the results thereof.

[The Government is asked to reply in full to the present comments in 2017.]