Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Article 1 of the Convention. Protection against anti-union discrimination. In its previous comments, the Committee referred to the need to provide further protection against anti-union discrimination and took note of the Government’s indication concerning the drafting of an amendment Bill that would empower the Labour Tribunal to make an order of reinstatement/re-engagement in cases of unreasonable and unlawful dismissal without the need to secure the employer’s consent. The Committee notes the Government’s indication that it has been working on the draft amendment Bill but that the Labour Advisory board, the high-level tripartite consultative committee on labour matters, has not reached an agreement on some technical details but will continue discussion of the matter. The Committee hopes that this Bill, which has been under examination since 1999, will soon be adopted so as to give legislative expression to the principle of adequate protection against acts of anti-union discrimination. It requests the Government to indicate any progress made in this respect in its next report.

Article 4. Measures to promote collective bargaining. The Committee‘s previous comments concerned the need to strengthen the collective bargaining framework, in particular with respect to the low levels of coverage of collective agreements which were not binding on the employer (see Committee on Freedom of Association, Case No. 1942), and the absence of an institutional framework for trade union recognition and collective bargaining. The Committee noted the measures taken by the Government to promote  collective bargaining, in particular the encouragement of voluntary negotiations, by promoting tripartite dialogue at the industry level through industry-level tripartite committees in the catering, construction, theatre, logistics, property management, printing, hotel and tourism, cement and concrete, as well as retail industries. In this respect, the Committee recalled that tripartite dialogue could not function as a substitute for bipartite negotiations referred to by the Convention, and requested the Government to continue to provide information on measures adopted or contemplated for the promotion of new bipartite collective agreements through the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations and to indicate any further sectors covered by collective agreements, as well as the level of coverage (number of collective agreements and workers covered). The Committee notes that, according to the Government’s report, collective agreements were signed in two other sectors, namely the cleaning services and tourism sectors and that the Labour Department encourages employers to maintain effective dialogue with employees’ or workers’ unions and to consult them on employment matters. Furthermore, the Labour Department produces promotional material and organizes seminars to promote voluntary and direct negotiation in the workplace. The Government indicates that it encourages voluntary bipartite negotiations at the industry level through the setting up of industry-based tripartite committees that contribute to create a positive climate that enables negotiation between employers’ and workers’ organizations in industries and individual enterprises. The Government emphasizes that voluntary negotiation has contributed to harmonious industrial relations which has had a considerable impact on the reduction of the number of work stoppages. Moreover, in March 2006, the Government organized a workshop with the participation of ILO officers on labour management cooperation, which included shared experiences concerning collective bargaining. The Committee takes note of this information but considers that the extent of coverage of collective bargaining is very low. The Committee requests the Government to take all the necessary measures to continue to promote voluntary bipartite negotiations in the private sector and to provide additional information concerning new sectors in which collective agreements have been concluded.

The Committee notes the comments submitted by the Hong Kong and Kowloon Trade Union Council with respect to the need for the Government to introduce legislation on collective bargaining rights. The Committee requests the Government to provide its comments thereon.

Measures to promote collective bargaining for civil servants not engaged in the administration of the State. In its previous comments, the Committee had requested the Government: (1) to indicate any measures discussed or adopted as a result of the work of the consultative group, set up by the Government to work on an improved civil service pay adjustment mechanism; (2) to indicate any measure taken with a view to extending the right to collective bargaining to civil servants; and (3) to provide information on the activities covered by the civil service with a view to determining those categories of civil servants who are not engaged in the administration of the State.

With respect to the civil service pay adjustment mechanism, the Committee notes that according to the Government, after consultation with the employees, it has developed an improved civil service pay adjustment mechanism which comprises an improved methodology for the conduct of the annual pay trend survey, a framework for the conduct of periodic pay level surveys and a framework for the application of pay level survey results for the civil service. The Committee further notes the Government’s indication to the effect that taking into account that all civil servants are engaged in the administration of the State, since they are responsible for formulating policies and strategies and performing law enforcement as well as regulatory functions, all of them are excluded from the application of the Convention. However, the existing consultation mechanism encourages effective communication between staff and management on matters concerning the terms and conditions of employment. Moreover, the Government is endeavouring to put in place procedures that will further engage staff representatives in more intensive consultations on terms and conditions of employment.

The Committee takes note of this information and recalls that, according to Article 4, civil servants not engaged in the administration of the State should enjoy not only the right to be consulted about their conditions of employment but also the right to bargain collectively. The Committee requests the Government to indicate the different categories and functions of the civil servants so as to identify which of them are in the administration of the State and which are not.