Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Hong Kong Special Administrative Region (Ratification: 1997)

Other comments on C098

Observation

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In its previous observation, the Committee requested the Government of the Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China to provide its comments on the 2020 observations of the Hong Kong Confederation of Trade Unions (HKCTU) (now disbanded) and the 2016 observations from the International Trade Union Confederation (ITUC) and the HKCTU, denouncing violations of the Convention in practice. The Committee notes the Government’s reply to the 2020 HKCTU observations but observes that it concerns matters examined within the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and does not address the allegations of violations of this Convention in practice. The Committee also notes with regret that the Government has still not provided any comments on the 2016 ITUC and HKCTU allegations. The Committee recalls that the pending observations on which it awaits the Government’s reply concern: (i) the interdiction (suspension from duty) by the Civil Service Bureau of 42 regular and probationary civil servants, including trade union members for their suspected participation in unauthorized public protests in April 2020; (ii) transfer of Dr Lam Kuen, chairperson of the Hospital Authority Workers General Union in 2019; (iii) demotion of Michael Ngan, chairperson of the Union for New Civil Servants, from his position at the Department of Labour in June 2020; (iv) lack of prosecution of anti-union allegations in two enterprises in April and November 2015; and (v) non-recognition of trade unions, as well as refusal to bargain collectively in eight companies in 2016. The Committee therefore urges the Government to provide its comments on the 2020 HKCTU’s allegations of violations of the present Convention in practice, as well as on the 2016 observations from the ITUC and the HKCTU.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comment, the Committee requested the Government to provide information on the application in practice of the amended Employment Ordinance (EO), which now allows the Labour Tribunal and the courts, in case of an unreasonable or unlawful dismissal (among others, dismissal 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 without having to secure the agreement of the employer. The Committee requested the Government to take the necessary measures to investigate any allegations of anti-union discrimination and to impose sufficiently dissuasive sanctions. The Committee notes the Government’s indication that the Department of Labour conducts vigorous and prompt investigations into every complaint of suspected anti-union discrimination and, since its previous report, conducted criminal investigation into ten such cases, which did not lead to prosecution due to insufficient evidence to establish the relevant offences. The Government adds that, since the implementation of the amended EO, no order for reinstatement or re-engagement has been made by the courts or the Labour Tribunal. While taking note of the above, the Committee observes that despite regular allegations of anti-union practices reported by the unions, very few investigations seem to have taken place and none of those led to a decision favourable to the workers. Further observing the high standard of proof required in criminal proceedings, which may prevent any findings on anti-union discrimination, the Committee requests the Government to clarify whether complaints of anti-union discrimination can also be dealt with outside of the criminal legal system. It further requests the Governmentto provide updated statistics on the number and nature of complaints of anti-union discrimination filed to the competent authorities, their follow-up and outcome, including any reinstatement ordered by the courts under the amended EO for anti-union practices.

Article 4. Promotion of collective bargaining. The Committee recalls that it has been pointing to the need to strengthen the collective bargaining framework in the country in light of the low levels of coverage of collective agreements and the absence of an institutional framework for trade union recognition and collective bargaining. The Committee notes that the Government reiterates information provided previously that: (i) collective bargaining must be voluntary and the community is sharply divided on whether to introduce compulsory collective bargaining by legislation (previously vetoed five times by the Legislative Council); (ii) voluntary collective bargaining underpinned by conciliation services of the Labour Department contributes to harmonious industrial relations; (iii) measures are taken at the enterprise and industry levels to promote communication and voluntary bargaining, including the industry-based tripartite committees; (iv) collective agreements were concluded in several sectors (previously enumerated); and (v) the Government does not keep statistics on the number of collective agreements concluded and the number of workers covered. The Committee observes that no concrete measures were taken to address its previous concerns as to the lack of an institutional framework for trade union recognition and collective bargaining (scope, protection and enforcement) and recalls once again, that establishing such a framework and administrative structure to which the parties may have recourse, on a voluntary basis and by mutual agreement, does not lead to compulsory bargaining but can facilitate the conclusion of collective agreements under the best possible conditions. In light of the above, the Committee requests the Government, in consultation with the social partners, to seriously consider taking measures, including of a legislative nature, to strengthen the legislative framework for collective bargaining so as to encourage and promote free and voluntary collective bargaining in good faith between trade unions and employers and their organizations. The Committee requests the Government to provide statistics on the number of collective agreements concluded, the sectors to which they apply and the number of workers covered.

Article 6. Collective bargaining in the public sector. For a number of years, the Committee has been requesting the Government to take the necessary measures, in consultation with the social partners, to ensure that public servants not engaged in the administration of the State, including teachers and employees in public enterprises, enjoy the right to collective bargaining. The Committee notes with regret the Government’s reiteration that all civil servants are excluded from the application of the Convention and observes that no measures have been taken to address the Committee’s prior comments in this respect. The Committee must recall once again that a distinction should be made between, on the one hand, those civil servants who, by their functions, are directly employed in the administration of the State and may be excluded from the scope of the Convention (for instance public servants in government ministries and other comparable bodies, and ancillary staff) and, on the other hand, all other persons employed by the Government and other public entities (for instance employees in public enterprises, municipal employees and those in decentralized entities, public sector teachers, as well as air transport personnel) who should benefit from the guarantees provided for in the Convention. The Committee therefore urges the Government once again to take the necessary measures,in consultation with the social partners, to ensure that public servants not engaged in the administration of the State, including teachers and employees in public enterprises, enjoy the right to collective bargaining. The Committee expects the Government to genuinely endeavour to address this longstanding issue so as to ensure compliance with the Convention.