Rapport définitif - Rapport No. 208, Juin 1981

1. 128. The complaint of the Public Service International (PSI) is contained in a letter dated 5 November 1980. The Government sent its observations in a communication dated 15 April 1981.
2. 129. The United Kingdom has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84) in respect of Hong Kong. It has declared applicable to Hong Kong the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) with modifications, and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Labour Relations (Public Service) Convention, 1978 (No. 151) applicable without modifications.

A. The complainant's allegations

1. 130. The PSI is of the view that there is a lack of negotiating procedures for public service workers in Hong Kong. It explains that the principal forum for discussion in Hong Kong for these workers is the Senior Civil Service Council, a central consultative council only, on which the staff are represented by merely three staff associations; its main emphasis is on establishing procedures to enable staff associations to represent their views to management. According to the complainant, a Staff Relations Division has been recently set up in the Civil Service with the object of ensuring that appropriate staff consultative machinery and procedures are established and made use of effectively by departments and staff associations. The PSI also refers to the recent establishment of a Standing Commission on Civil Service Salaries and Conditions of Service whose main targets, according to an official press release, should be "to advise the Governor on the principles governing the Civil Service grade and salary structure, and on ways of carrying out regular reviews of individual grades. The commission would oversee such reviews and, after discussion between staff and management, advise the Governor on points at issue where staff and the official side cannot agree, the Commission will advise on procedures to ensure that the staff can represent their views to the Commission before it formulates its advice".
2. 131. The complainant states that these procedures are far removed from Convention No. 98 which calls for measures to be taken to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations with a view to the regulation of terms and conditions of employment by means of collective agreements.

B. The Government's reply

1. 132. The Government states that the public sector in Hong Kong is extremely complex, including not only the Civil Service but other functions similar to those of local authorities, public corporations and nationalised industries in the United Kingdom. This has resulted in a proliferation of public sector trade unions (for example, in 1980 there were 143 civil service staff unions) which raises practical problems in any consultations or negotiations between the trade union representation and the Government. According to the Government, there is a need for rationalisation of the trade union structure to be brought about by the unions' own initiative.
2. 133. It explains that the Government of Hong Kong has taken measures appropriate to Hong Kong's conditions to promote and encourage consultation and voluntary negotiation between Civil service staff unions and the Administration: the Senior Civil Service Council was set up under an agreement with the three main staff unions existing at the time; individual unions may achieve representation on Departmental Consultative Councils; in 1979 the independent Standing Commission on Civil Service Salaries and Conditions of Service was appointed and it takes full account in formulating advice and recommendations of the views of Civil Service staff unions.
3. 134. The Government states that, in September 1980, the Standing Commission submitted a report to the Governor making certain recommendations on how to improve the consultative machinery within the Civil Service: the establishing and strengthening, at departmental level, of machinery for consulting staff to improve staff-management communication; proposals to set up a new central council to represent junior civil servants in addition to the Senior Civil Service Council; a joint review of this latter body; the establishment of staff complaint and grievance procedures in all departments. According to the Government, these recommendations have now been accepted by the Hong Kong Government and steps are in hand to implement them.

C. The Committee's conclusions

1. 135. The complainant in this case alleges a lack of negotiating procedures for civil servants in Hong Kong. The Government, on the other hand, claims that the three types of standard-setting bodies - the Senior Civil Service Council, the Departmental Consultative Councils or Staff Relations Division of the Civil Service, having staff union representation, and the independent Standing Commission on Civil Service Salaries and Conditions of Service - take full account of the civil servants' unions' views. The Government also states that recent recommendations by the Standing Commission to improve the consultative machinery within the Civil Service will be implemented.
2. 136. The Committee notes that the complainant relies on the phrase "by means of collective agreements" in Article 4 of Convention No. 98, declared applicable without modification to Hong Kong, as justification for its claim that negotiating procedures are insufficient and purely consultative in nature. The Committee would point out that Article 7 of Convention No. 151, also declared applicable without modification to Hong Kong, states that negotiations of terms of conditions of employment can be carried out through "such other methods as will allow representatives of public employees to participate in the determination of these matters". The discussion during the adoption of this latter Convention left these alternative methods deliberately vague. But the accompanying Recommendation No. 159, in Article 2(2), states that "Where methods other than negotiation are followed to allow representatives of public employees to participate in the determination of terms and conditions of employment, the procedure for such participation and for final determination of these matters should be determined by national laws or regulations or other appropriate means".
3. 137. The Committee is not called upon to express a view on systems of collective agreements in force in different countries except in so far as such a system may impair the right of trade unions to assume freely the defence of the workers. In the present case, in view of the considerations set out in the previous paragraph, the Committee is of the opinion that the system operating in Hong Kong has deficiencies, in particular the lack of a representative consultative or negotiating body for junior civil servants. It notes, however, that the Hong Kong Government has accepted independent recommendations to rectify this specific situation, as well as recommendations to strengthen, at departmental level, the machinery for consulting staff to improve staff management communication and to review jointly the Senior Civil Service council.
4. 138. The Committee would hope that in implementing these recommendations the Government will take full account of the principles set out in Convention No. 151 concerning the negotiation of terms of conditions of employment for public employees. It considers that the Committee of Experts on the Application of Conventions and Recommendations should be informed of the conclusions in this case.