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

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

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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.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 16 September 2020 reiterating matters raised in its observations sent in 2019 and addressed in the present comment. It also notes the observations of the Hong Kong Confederation of Trade Unions (HKCTU) received on 30 September 2020 referring to matters addressed in the present comment and denouncing violations of the Convention in practice, including anti-union transfers and demotions in the context of public protests. The Committee takes note of the reply of the Government in connection to the ITUC and HKCTU’s observations. It notes that the reply mostly concerns matters examined within the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee thus requests 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, which also contain allegations of violations of the Convention in practice.

The Committee also notes the Government’s supplementary report provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020), which does not provide new information on pending issues. The Committee therefore reiterates the content of its observation adopted in 2019 and reproduced below.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee had noted the Government’s reference to the drafting of an amendment 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 had expressed its expectation that the Bill, which had been under examination for 17 years, would be adopted without any further delay so as to give legislative expression to the principle of adequate protection against acts of anti-union discrimination and would be effectively enforced in practice. The Committee notes with interest the Government’s indication that, by virtue of the Employment (Amendment) (No. 2) Ordinance, 2018, which amends the Employment Ordinance (EO), the Labour Tribunal and the courts are now empowered, 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 observes, however, that, according to the ITUC and the HKCTU, the amended ordinance allows for discretion in ordering reinstatement and the penalty for the employer’s failure to observe a reinstatement is not sufficiently dissuasive to ensure such compliance (three months of the worker’s average salary and not exceeding 72,500 Hong Kong dollars (HKD) (US$9,300)). The Committee also notes the Government’s statement that it accords high priority to investigating complaints on suspected anti-union discrimination but observes that, according to the ITUC and the HKCTU, only two prosecutions of anti-union discrimination resulted in reinstatement since 1974, as it is difficult to prove the employer’s covert intent in criminal proceedings. In light of the above, the Committee requests the Government to provide information on the application in practice of the amended EO, in particular to inform about its impact on the number of reinstatement orders issued by the courts and effectively implemented by the employers. Bearing in mind the allegations made by the ITUC and the HKCTU with regard to anti-union dismissals and threats of dismissals in the context of public protests, the Committee requests the Government to take the necessary measures to investigate any allegations of anti-union discrimination and to impose sufficiently dissuasive sanctions to avoid the occurrence of such acts in the future. The Committee further requests the Government to provide updated statistics on the number and nature of complaints of anti-union discrimination filed to the competent authorities, their follow-up and outcome.

Article 4. Promotion of collective bargaining. The Committee recalls that it had previously referred to the need to strengthen the collective bargaining framework in the light of the low levels of coverage of collective agreements, which were not binding on the employer, and the absence of an institutional framework for trade union recognition and collective bargaining. In its previous comment, the Committee requested the Government, in consultation with the social partners, to step up its efforts to take effective measures, including of a legislative nature, in order to encourage and promote free and voluntary collective bargaining in good faith between trade unions and employers and their organizations. The Committee notes the Government’s indication that: (i) collective bargaining compelled by law is not conducive to voluntary negotiation and there is no consensus on introducing compulsory bargaining in the legislation; (ii) the Labour Department, making use of its conciliation services, encourages employers and employees to draw up agreements on the terms and conditions of employment, which has contributed to harmonious industrial relations; (iii) collective agreements have been reached in certain industries including printing, construction, public bus transport, air transport, food and beverage processing, pig-slaughtering and elevator maintenance; (iv) the Government has been taking numerous measures appropriate to local conditions, both at the enterprise and industry levels, to encourage and promote voluntary negotiation and effective communication between employers and employees or their respective organizations, including through the industry-based tripartite committees; and (v) all the above efforts help foster an environment conducive to voluntary bipartite negotiation between employers and employees or their respective organizations.

While taking due note of the information provided, including on the promotional measures and activities undertaken, the Committee observes the concerns raised by the ITUC and the HKCTU that there is still no legal framework to regulate the scope, protection and enforcement of the agreements and that less than one per cent of workers are covered by collective bargaining. The Committee recalls in this regard that collective bargaining is a fundamental right which members States have an obligation to respect, promote and to realize in good faith and that the overall aim of Article 4 of the Convention is to promote good-faith collective bargaining between workers or their organizations on the one hand, and employers or their organizations, on the other hand, with a view to reaching an agreement on terms and conditions of employment. The Committee also emphasizes that it has not been requesting the Government to impose compulsory collective bargaining, as under the terms of Article 4 of the Convention, collective bargaining must be free and voluntary but that it has been pointing to the need to strengthen the collective bargaining framework. The Committee also reiterates, as regards the tripartite committees established at the industry-level, that the principle of tripartism, which is particularly appropriate for the regulation of questions of a larger scope (drafting of legislation and formulating labour policies), should not replace the principle enshrined in the Convention of autonomy of workers’ organizations and employers (or their organizations) in bipartite collective bargaining on conditions of employment. The Committee also recalls that, whatever the type of machinery used, its first objective should be to encourage by all possible means free and voluntary collective bargaining between the parties, allowing them the greatest possible autonomy, while establishing a legal framework and administrative structure to which they may have recourse, on a voluntary basis and by mutual agreement, to facilitate the conclusion of a collective agreement under the best possible conditions (see the 2012 General Survey on the fundamental Conventions, paragraph 242). Considering the above, the Committee requests the Government, in consultation with the social partners, to step up its efforts to take effective 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. In its previous comments, the Committee requested the Government 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 regrets to observe that the Government simply reiterates that every civil servant, irrespective of grade or rank, is a part of the civil service and contributes to the administration of the Government, and that all civil servants are thus excluded from the application of Article 6 of the Convention. It also observes the concerns expressed by the ITUC and the HKCTU that civil servants are excluded from the enforcement of the Convention without distinction of rank and job. While further noting the Government’s explanation that there are sufficient avenues for staff representatives to participate in the process for determining the terms and conditions of employment, including through an elaborate three-tier staff consultation mechanism and independent bodies which provide impartial advice on matters of conditions of employment, the Committee reiterates that a distinction must be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (for example, in some countries, public servants in government ministries and other comparable bodies, and ancillary staff), who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the Government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention. It recalls that the establishment of simple consultation procedures for public servants instead of real collective bargaining procedures is not sufficient. The Committee therefore urges 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 trusts that the Government will be able to report progress in this regard in the near future.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the observations of the International Trade Union Confederation (ITUC) and the Hong Kong Confederation of Trade Unions (HKCTU) received on 1 September 2019 referring to matters addressed in the present comment and denouncing violations of the Convention in practice, including anti-union dismissals and threats of dismissals in the context of public protests, as well as limited promotion of the right to collective bargaining. The Committee notes the Government’s reply thereto. The Committee observes that the Government does not provide any information in relation to the 2016 observations from the ITUC and the HKCTU, alleging violations of the Convention in practice. The Committee requests the Government to provide a detailed reply to the 2016 ITUC and HKCTU observations.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee had noted the Government’s reference to the drafting of an amendment 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 had expressed its expectation that the Bill, which had been under examination for 17 years, would be adopted without any further delay so as to give legislative expression to the principle of adequate protection against acts of anti-union discrimination and would be effectively enforced in practice. The Committee notes with interest the Government’s indication that, by virtue of the Employment (Amendment) (No. 2) Ordinance, 2018, which amends the Employment Ordinance (EO), the Labour Tribunal and the courts are now empowered, 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 observes, however, that, according to the ITUC and the HKCTU, the amended ordinance allows for discretion in ordering reinstatement and the penalty for the employer’s failure to observe a reinstatement is not sufficiently dissuasive to ensure such compliance (three months of the worker’s average salary and not exceeding 72,500 Hong Kong Dollars (HKD) (US$9,300)). The Committee also notes the Government’s statement that it accords high priority to investigating complaints on suspected anti-union discrimination but observes that, according to the ITUC and the HKCTU, only two prosecutions of anti-union discrimination resulted in reinstatement since 1974, as it is difficult to prove the employer’s covert intent in criminal proceedings. In light of the above, the Committee requests the Government to provide information on the application in practice of the amended EO, in particular to inform about its impact on the number of reinstatement orders issued by the courts and effectively implemented by the employers. Bearing in mind the allegations made by the ITUC and the HKCTU with regard to anti-union dismissals and threats of dismissals in the context of public protests, the Committee requests the Government to take the necessary measures to investigate any allegations of anti-union discrimination and to impose sufficiently dissuasive sanctions to avoid the occurrence of such acts in the future. The Committee further requests the Government to provide updated statistics on the number and nature of complaints of anti-union discrimination filed to the competent authorities, their follow-up and outcome.

Article 4. Promotion of collective bargaining. The Committee recalls that it had previously referred to the need to strengthen the collective bargaining framework in the light of the low levels of coverage of collective agreements, which were not binding on the employer, and the absence of an institutional framework for trade union recognition and collective bargaining. In its previous comment, the Committee requested the Government, in consultation with the social partners, to step up its efforts to take effective measures, including of a legislative nature, in order to encourage and promote free and voluntary collective bargaining in good faith between trade unions and employers and their organizations. The Committee notes the Government’s indication that: (i) collective bargaining compelled by law is not conducive to voluntary negotiation and there is no consensus on introducing compulsory bargaining in the legislation; (ii) the Labour Department, making use of its conciliation services, encourages employers and employees to draw up agreements on the terms and conditions of employment, which has contributed to harmonious industrial relations; (iii) collective agreements have been reached in certain industries including printing, construction, public bus transport, air transport, food and beverage processing, pig-slaughtering and elevator maintenance; (iv) the Government has been taking numerous measures appropriate to local conditions, both at the enterprise and industry levels, to encourage and promote voluntary negotiation and effective communication between employers and employees or their respective organizations, including through the industry-based tripartite committees; and (v) all the above efforts help foster an environment conducive to voluntary bipartite negotiation between employers and employees or their respective organizations.

While taking due note of the information provided, including on the promotional measures and activities undertaken, the Committee observes the concerns raised by the ITUC and the HKCTU that there is still no legal framework to regulate the scope, protection and enforcement of the agreements and that less than one per cent of workers are covered by collective bargaining. The Committee recalls in this regard that collective bargaining is a fundamental right which members States have an obligation to respect, promote and to realize in good faith and that the overall aim of Article 4 of the Convention is to promote good-faith collective bargaining between workers or their organizations on the one hand, and employers or their organizations, on the other hand, with a view to reaching an agreement on terms and conditions of employment. The Committee also emphasizes that it has not been requesting the Government to impose compulsory collective bargaining, as under the terms of Article 4 of the Convention, collective bargaining must be free and voluntary but that it has been pointing to the need to strengthen the collective bargaining framework. The Committee also reiterates, as regards the tripartite committees established at the industry-level, that the principle of tripartism, which is particularly appropriate for the regulation of questions of a larger scope (drafting of legislation and formulating labour policies), should not replace the principle enshrined in the Convention of autonomy of workers’ organizations and employers (or their organizations) in bipartite collective bargaining on conditions of employment. The Committee also recalls that, whatever the type of machinery used, its first objective should be to encourage by all possible means free and voluntary collective bargaining between the parties, allowing them the greatest possible autonomy, while establishing a legal framework and administrative structure to which they may have recourse, on a voluntary basis and by mutual agreement, to facilitate the conclusion of a collective agreement under the best possible conditions (see the 2012 General Survey on the fundamental Conventions, paragraph 242). Considering the above, the Committee requests the Government, in consultation with the social partners, to step up its efforts to take effective 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. In its previous comments, the Committee requested the Government 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 regrets to observe that the Government simply reiterates that every civil servant, irrespective of grade or rank, is a part of the civil service and contributes to the administration of the Government, and that all civil servants are thus excluded from the application of Article 6 of the Convention. It also observes the concerns expressed by the ITUC and the HKCTU that civil servants are excluded from the enforcement of the Convention without distinction of rank and job. While further noting the Government’s explanation that there are sufficient avenues for staff representatives to participate in the process for determining the terms and conditions of employment, including through an elaborate three-tier staff consultation mechanism and independent bodies which provide impartial advice on matters of conditions of employment, the Committee reiterates that a distinction must be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (for example, in some countries, public servants in government ministries and other comparable bodies, and ancillary staff), who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the Government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention. It recalls that the establishment of simple consultation procedures for public servants instead of real collective bargaining procedures is not sufficient. The Committee therefore urges 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 trusts that the Government will be able to report progress in this regard in the near future.

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

The Committee notes the observations from the International Trade Union Confederation (ITUC) received on 31 August 2016 referring to matters being examined by the Committee, and alleging violations of the Convention in practice, such as anti-union dismissals and violations of collective bargaining rights. The Committee also notes the observations from the Hong Kong Confederation of Trade Unions (HKCTU) received on 1 September 2016 concerning the application of the Convention. The Committee requests the Government to provide its comments on these observations. It notes the Government’s comments on the 2013 ITUC and HKCTU observations.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee had noted the Government’s reference to the drafting of an amendment 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, and had reiterated its hope that the bill, which had been under examination since 1999, would be adopted without further delay. The Committee notes that the Government indicates that: (i) it fully recognizes the importance of protecting the workforce against acts of anti-union discrimination and is committed to safeguarding the rights of workers in this respect; (ii) the Government does not, and will not, tolerate contravention of the law by employers or persons acting on their behalf; (iii) high priority is accorded by the Government to investigating complaints on suspected anti-union discriminatory acts; and (iv) the effectiveness of the Government’s effort is, to a certain extent, reflected by the low number of such complaints received each year. In this regard, the Committee observes that according to the HKCTU the low number of complaints and the even lower number of successful litigation cases against employers (not more than two since 1997) evidence the virtual deprivation of protection against anti-union discrimination in Hong Kong. The Committee notes that the Government announced that it has introduced in March 2016 the Employment (Amendment) Bill 2016 into the Legislative Council (LegCo), and that, as at the end of the period under review, the Bill was under the scrutiny of LegCo. The Committee notes however that, according to the HKCTU observations, the fine foreseen in the Bill for refusal to comply with a reinstatement order amounted to only 50,000 Hong Kong dollar (HKD) (US$6,410) and that, following an attempt to amend the Bill to double the fine, the decision was taken to withdraw the Bill so that it can be discussed anew by the Labour Advisory Board. The Committee expects that the Bill, which has been under examination for 17 years, will be adopted without any further delay so as to give legislative expression to the principle of adequate protection against acts of anti-union discrimination and will be effectively enforced in practice. It requests the Government to indicate any progress achieved in this respect.

Article 4. Promotion of collective bargaining. The Committee recalls that its previous comments referred to the need to strengthen the collective bargaining framework, in particular in the light of the low levels of coverage of collective agreements, which were not binding on the employer, and the absence of an institutional framework for trade union recognition and collective bargaining. The Committee notes the Government’s indications that: (i) collective bargaining, if it is to be effective, should be voluntary; collective bargaining compelled by law might not be conducive to yielding results as in voluntary negotiation; (ii) the Legislative Council has voted down motion debates on calls for compulsory collective bargaining five times in 1998, 1999, 2002, 2009 and 2013; (iii) employers and employees or their respective organizations are free to negotiate and enter into collective agreements on the terms and conditions of employment, and where its conciliation service is used, the Labour Department encourages employers and employees to draw up agreements on the terms and conditions of employment agreed upon by both sides; (iv) voluntary negotiation between employers and employees underpinned by the conciliation service has contributed to harmonious industrial relations: in 2014 and 2015, the average number of working days lost owing to strikes was only 0.04 and 0.03 respectively per 1,000 non-government salaried employees and wage earners; (v) collective agreements have been reached on issues relating to the terms and conditions of employment in certain industries or trades including printing, construction, public bus, air transport, food and beverage processing, pig-slaughtering and elevator maintenance; (vi) measures appropriate to local conditions have been taken to promote voluntary and direct negotiations between employers and employees or their respective organization, for instance: the Labour Department produced a variety of promotional materials; organized various seminars and talks to promote effective labour management communication and a company-visit-cum-sharing session for representatives of trade associations, employers and employees’ unions of various industries; at enterprise level, by encouraging employers to maintain effective communication and consult on employment matters; and at industry level, via the tripartite committees, which meet regularly and conduct discussions on issues of mutual concern (such as amendments to the Employment Ordinance), and actively provide views (for example, to the statutory Minimum Wage Commission).

Observing that the promotional measures at industry-level are limited to the tripartite committees, the Committee reiterates that the principle of tripartism, which is particularly appropriate for the regulation of questions of a larger scope (drafting of legislation, formulating labour policies), should not replace the principle enshrined in the Convention of autonomy of workers’ organizations and employers (or their organizations) in collective bargaining on conditions of employment. Furthermore, noting that the Government mentions on several occasions the measures “taken to promote voluntary and direct negotiations between employers and employees or their respective organizations”, the Committee recalls that where there exists a representative trade union and it is active within the enterprise or branch of activity concerned, the authorization for other workers’ representatives to bargain collectively not only weakens the position of the trade union, but also undermines the right to collective bargaining. In light of the HKCTU observations that negotiated collective agreements are not implemented and that employers generally refuse to recognize unions for the purposes of collective bargaining, the Committee recalls that the principle of negotiation in good faith, which is derived from Article 4 of the Convention, encompasses the recognition of representative organizations and the mutual respect of the commitments made and the results achieved through bargaining. The Committee requests the Government, in consultation with the social partners and in line with the above considerations, to step up its efforts to take effective measures, including of a legislative nature, in order to encourage and promote free and voluntary collective bargaining in good faith between trade unions and employers and their organizations.

Article 6. Collective bargaining in the public sector. The Committee had previously requested the Government to indicate the different categories and functions of the civil servants so as to identify which of them are engaged in the administration of the State. The Committee notes that the Government reiterates that: (i) all civil servants are engaged in the administration of the Government and thus excluded from the application of the Convention, as they are responsible for formulating policies and strategies, as well as performing law enforcement and regulatory functions, and that every civil servant, irrespective of his or her grade or rank contributes to the administration of the State; and (ii) it has established an elaborate three-tier staff consultation mechanism through which staff representatives are extensively consulted on the terms and conditions of employment. The Committee also notes the Government’s indication that: (i) in the process for determining matters for consultation, staff representatives may submit demands and put forward counter-proposals in response to Government offers; and (ii) various independent bodies, such as the Standing Commission on Civil Service Salaries and Conditions of Service, provide impartial advice to Government after having taken into account the views expressed by staff and management.

The Committee recalls that a distinction must be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (for example, in some countries, public servants in government ministries and other comparable bodies, and ancillary staff), who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention (for instance, employees in public enterprises, municipal employees and those in decentralized entities, and public sector teachers). The Committee recalls that only public servants engaged in the administration of the State may be excluded from the scope of the Convention and that the establishment of simple consultation procedures for public servants instead of real collective bargaining procedures is not sufficient. The Committee requests the Government 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, and to provide information in this respect.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) and by the Hong Kong Confederation of Trade Unions (HKCTU) in communications dated 30 August 2013, which refer to the matters examined by the Committee and allege numerous violations of the Convention in practice. The Committee requests the Government to provide its observations thereon.

Article 1 of the Convention. Protection against acts of anti-union discrimination. In its previous comments, the Committee had noted the Government’s reference to 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 and expressed the hope that this bill would soon be adopted. The Committee notes that the Government indicates in its report that it has revised the proposal concerning those amendments so as to provide that an employer who fails to comply with the order of the Labour Tribunal will be required to pay a further sum to the employee; non-payment of this amount would become a criminal offence. The Government also indicates that it has consulted the Labour Advisory Board and the Panel on Manpower of the Legislative Council on the revised proposal and that it is currently drafting the amendment legislation. The Committee reiterates its hope that this bill, which has been under examination since 1999, will be adopted without further delay so as to give legislative expression to the principle of adequate protection against acts of anti-union discrimination and requests the Government to indicate any progress made in this respect.

Article 4. Promotion of collective bargaining. The Committee recalls that its previous comments referred to the need to strengthen the collective bargaining framework, in particular in the light of the low levels of coverage of collective agreements, which were not binding on the employer, and the absence of an institutional framework for trade union recognition and collective bargaining. The Committee notes that the Government reiterates the following: (i) employers and employees are free to negotiate and enter into collective agreements on the terms and conditions of employment; (ii) collective agreements are concluded in various economic sectors; (iii) the Labour Department produces and distributes free promotional materials on effective communication and consultation, and organizes seminars on effective labour-management communication and good management practices; (iv) the Government promotes voluntary and direct negotiation between employers and employees or their organizations at different levels; (v) the Government will continue to use tripartite committees to promote bipartite voluntary negotiation at the industrial level; and (vi) it will continue taking the above measures to help foster an environment and atmosphere conducive to voluntary negotiation between employers’ and workers’ organizations at the industrial and enterprise levels. The Committee notes, however, that according to the HKCTU, the Government rejects the adoption of collective bargaining legislation, which would also set up an institutional framework for trade union recognition, arguing that such legislation would harm the competitiveness of the Hong Kong economy. The HKCTU further alleges that employers largely ignore the unions’ call for collective bargaining and refers to several such examples. With regard to the tripartite dialogue referred to by the Government, the HKCTU contends that the tripartite committees are consultative only in nature and have no legally binding responsibility to establish or promote collective bargaining at the enterprise or industrial levels. The Committee recalls that Article 4 of the Convention is aimed at promoting free and voluntary bargaining between workers’ organizations and an employer or employers’ organizations. It considers that the principle of tripartism, which is particularly appropriate for the regulation of questions of a larger scope (drafting of legislation, formulating labour policies), should not replace the principle of autonomy of workers’ organizations and employers (or their organizations) in collective bargaining on conditions of employment. The Committee therefore requests the Government, in consultation with the social partners, to take additional appropriate measures, including of a legislative nature, in order to encourage and promote collective bargaining between trade unions and employers and their organizations.

Article 6. Collective bargaining in the public service. The Committee had previously requested the Government to indicate the different categories and functions of the civil servants so as to identify which of them are engaged in the administration of the State and which are not. The Committee notes that the Government reiterates that all civil servants are engaged in the administration of the Government as they are responsible for, among other things, formulating policies and strategies, as well as performing law enforcement and regulatory functions, and that every civil servant, irrespective of his or her grade or rank, is part and parcel of the civil service and contributes in various ways to the administration of the State. The Government confirms that all civil servants, together with those employed in various independent bodies, which provide impartial advice to the Government on matters concerning pay and conditions of service in the civil service, are excluded from the application of the Convention. The Government indicates, however, that it had established an effective system for consultation with staff on matters affecting their terms and conditions of employment. The Committee recalls that pursuant to the Convention, civil servants not engaged in the administration of the State should enjoy not only the right to be consulted on their conditions of employment but also the right to bargain collectively. The Committee requests the Government, in consultation with the social partners, to take the necessary measures to guarantee this right through an adequate institutional framework. It requests the Government to provide information on all measures taken or envisaged in this respect.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the comments of the International Trade Union Confederation (ITUC) dated 4 August 2011 concerning issues already raised by the Committee and the additional comments communicated by the ITUC and the Hong Kong Confederation of Trade Unions (HKCTU) dated 31 August 2011, referring notably to the deprivation of effective protection against anti-union discrimination in Hong Kong evidenced by the low number of complaints filed by the Labour Department and the even lower number of successful cases against employers – not more than two since 1997. The Committee requests the Government to provide its observations thereon.

Article 1 of the Convention. Protection against anti-union discrimination. In several of its previous comments, the Committee referred to the need to provide further protection against anti-union discrimination and noted the Government’s reference to 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 had further noted that the Government indicated that: (i) there was ongoing progress on amendments to introduce new provisions on mandatory reinstatement and re-engagement under the Employment Ordinance, Chapter 57; (ii) upon completion of the draft, it would be introduced into the Legislative Council; and (iii) it has committed to introduce a bill which criminalizes non-payment of labour tribunal awards. The Committee notes that the Government indicates in its report that the new bill will also include a provision of a further sum to be payable to the employee in case the employer fails to comply with the compulsory order of reinstatement or re-engagement. The Committee once again expresses the hope 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 and requests the Government to indicate any progress made in this respect.

Article 4. Measures to promote collective bargaining. Several of 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 previously 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). In addition, the Committee previously requested 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 had previously noted that the Government referred to promotional materials, seminars, and operational activities between workers’ and employers’ representatives and indicated that collective agreements had been negotiated in the food processing and security services. The Committee appreciates the Government’s indication in its report that during the reporting period, collective agreements in the pig-slaughtering, property management and some other public transport services trades were noted. In its previous comments, the Committee had also noted that the Government stated that: (i) it would continue to use tripartite committees as one of the useful channels for promoting bipartite voluntary negotiation at the industry level; (ii) it had been promoting direct and voluntary negotiations between employers’ and workers’ organizations; and (iii) it had taken measures appropriate to local conditions to promote voluntary and direct negotiations between employers and employees or their respective organizations. The Committee notes that the Government reiterates these affirmations in its report. Taking into account that the ITUC refers to a collective bargaining coverage of only 1 per cent of the population, the Committee once again requests the Government to continue to promote collective bargaining and to provide information in this regard.

Article 6. Measures to promote collective bargaining for civil servants not engaged in the administration of the State. The Committee previously requested 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. The Committee had noted that, according to the ITUC, all employees in the public sector are deprived of the right to engage in collective bargaining. The Committee once again notes that the Government again reports that all civil servants in Hong Kong, i.e. persons employed to work in government bureaux/departments, are engaged in the administration of the State as they are responsible for, among others, formulating policies and strategies and performing law enforcement and regulatory functions. Noting that it follows from the Government’s report that in the public sector there are consultations but not collective bargaining, the Committee 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 on their conditions of employment but also the right to bargain collectively and once again requests the Government to ensure this right. The Committee once again requests the Government to indicate the different categories and functions of the civil servants so as to identify which of them are engaged in the administration of the State and which are not. The Committee also requests the Government to indicate any agreement concluded in the public sector.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

normal'>(notification: 1997)

The Committee notes the observations of the Hong Kong Confederation of Trade Unions (HKCTU) dated August 2009 and the International Trade Union Confederation (ITUC) dated 26 August 2009 and 9 September 2009 concerning discrimination of the authorities against the HKCTU, as well as the Government’s comments.

Article 1 of the Convention. Protection against anti-union discrimination. In several of its previous comments, the Committee referred to the need to provide further protection against anti-union discrimination and noted the Government’s reference to 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, in its report, indicates that progress on amendments to introduce new provisions on mandatory reinstatement and re-engagement under the Employment Ordinance, Chapter 57 and that upon completion of the draft, it will be introduced into the Legislative Council. The Government indicates that it has committed to introduce a bill which criminalizes non-payment of labour tribunal awards. The Committee once again expresses the hope 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 and requests the Government to indicate any progress made in this respect.

Article 4. Measures to promote collective bargaining. Several of 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 previously 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). In addition, the Committee previously requested 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 that the Government refers to promotional materials, seminars, and operational activities between workers’ and employers’ representatives and indicates that since the last report, collective agreements have been negotiated in the food processing and security services. The Committee also notes that the Government states that it will continue to use tripartite committees as one of the useful channels for promoting bipartite voluntary negotiation at the industry level. The Government adds that it has been promoting direct and voluntary negotiations between employers’ and workers’ organizations. In addition, the Committee notes that the ITUC indicates that less than 1 per cent of workers are covered by collective agreements and those that exist are not binding. The Government answers that in the recent years the number of trade unions and affiliates has increased steadily. The Committee wishes to recall 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 notes that the Government indicates that it has all along taken measures appropriate to local conditions to promote voluntary and direct negotiations between employers and employees or their respective organizations. The Committee once again requests the Government to continue to promote collective bargaining and to provide information in this regard.

Article 6. Measures to promote collective bargaining for civil servants not engaged in the administration of the State. The Committee previously requested 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. The Committee notes that the Government again reports that all civil servants in the HKSAR, i.e. persons employed to work in government bureaux/departments, are engaged in the administration of the State as they are responsible for, among others, formulating policies and strategies and performing law enforcement and regulatory functions. The Committee notes that according to the ITUC, all employees in the public sector are deprived of the right to engage in collective bargaining. Noting that it follows from the Government’s report that in the public sector there are consultations but not collective bargaining, the Committee 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 on their conditions of employment but also the right to bargain collectively and requests the Government to ensure this right. The Committee once again requests the Government to indicate the different categories and functions of the civil servants so as to identify which of them are engaged in the administration of the State and which are not. The Committee also requests the Government to indicate any agreement concluded in the public sector.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

normal'>(notification: 1997)

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.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee takes note of the information provided by the Government representative to the Conference Committee in June 2004 and the discussion that followed. The Committee notes that the Conference Committee took note of the Government’s statement that it was in the process of examining measures to guarantee a better application of the Convention, in particular with regard to the promotion of collective bargaining, and expressed the firm hope that measures would be taken without delay to guarantee the full implementation of the Convention.

Article 1 of the Convention. The Committee’s previous comments concerned the need to provide further protection against anti-union discrimination. The Committee had noted the information provided by the Government to the effect that it had been working on 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 – an approach endorsed by the tripartite Labour Advisory Board.

The Committee notes that the Government has been working on a draft amendment bill on this issue but given the complexity of the matter more time is needed. The Committee requests the Government to indicate in its next report any progress made in the adoption of the bill. Noting that this issue has been under examination since 1999, the Committee hopes that the bill will be adopted as soon as possible.

Article 4. 1. Measures to promote collective bargaining. The Committee’s previous comments concerned the need to strengthen the collective bargaining framework, pursuant to comments made by the International Confederation of Free Trade Unions (ICFTU) and the Hong Kong Confederation of Trade Unions (HKCTU) and the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 1942 with regard to low levels of coverage of collective agreements which are moreover not binding on the employer, as well as the absence of an institutional framework for trade union recognition and collective bargaining.

The Committee notes the Government’s statement that it subscribes fully to Article 4 of the Convention and is committed to promoting voluntary and direct negotiations between employers and employees or their respective organizations. It also notes the measures described by the Government with a view to the promotion of collective bargaining, including promotion of effective communication at enterprise level, notably through seminars and promotional materials, an informal survey on the mode of labour-management communication, and 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). The Government emphasizes with regard to the tripartite committees that they are not merely advisory bodies. They provide, on the contrary, an effective forum for major employers’ and employees’ organizations to discuss labour issues of mutual concern and hence facilitate voluntary communication and negotiations between them. During the reporting period, as a further measure to promote voluntary negotiation, special efforts were made by these tripartite committees to focus on industry-specific people management issues. As a result, employers’ and employees’ organizations in some industries, such as property management and hotel and tourism industries, have agreed on industry-specific good people management guidelines which place specific emphasis on the importance of effective communication between employers and employees. In September 2004, the three tripartite committees on catering, retail and hotel and tourism industries jointly organized a large-scale labour relations seminar for employers and employees of these industries.

The Committee also notes from the Government’s report that, although statistics on collective bargaining are not available, collective agreements are quite common in some trades such as printing, construction, public bus and air transport industries as well as ship maintenance and the goods loading and unloading industries. Many of these agreements have benefited from the Labour Department’s conciliation services.

The Committee takes note of this information, in particular, the adoption of collective agreements in the abovementioned sectors. It requests the Government to indicate in its next report any further sectors covered by collective agreements, as well as the level of coverage (number of collective agreements and workers covered). Noting, moreover, that effective communication and tripartite dialogue cannot function as a substitute for bipartite negotiations, although they may be useful tools for the promotion of a positive industrial relations climate at the highest level, the Committee requests 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.

2. 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 to take all necessary measures so as to guarantee the right of public employees who are not engaged in the administration of the State to negotiate collectively their conditions and terms of employment.

The Committee notes from the Government’s report that the Government has established within the civil service an elaborate three-tier staff consultation mechanism which operates in compliance with the spirit and principles of Article 4 of the Convention for consultation between management and staff on various issues of concern to civil servants, including terms and conditions of employment of public employees, regardless of whether they are engaged in the administration of the State. The Government will build on this machinery and put in place customized procedures or forums to engage staff representatives in more intensive consultation on the terms and conditions of employment of civil servants, where necessary and appropriate. It is now working closely with staff on the development of an improved civil service pay adjustment mechanism to underpin the established policy of maintaining civil service pay at a level broadly comparable to that of the private sector. To this end, in April 2003, the Government set up a consultative group which already functions as a regular forum for intensive discussions with the participation of the staff sides of the four central consultative councils and the four major service-wide staff unions.

Taking due note of this information, the Committee requests the Government to indicate in its next report any measures discussed or adopted as a result of the work of the consultative group on an improved civil service pay adjustment mechanism. Moreover, noting once again that public servants who are not engaged in the administration of the State have the right to negotiate collectively their conditions and terms of employment, the Committee once again requests the Government to indicate, in its next report, any measures taken with a view to extending the right to collective bargaining to this category of civil servants. The Committee finally requests the Government to provide further information on the various 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.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes note of the information contained in the Government’s report. It also takes note of the information provided by the Government representative to the Conference Committee in June 2004 and the discussion that followed. The Committee notes that the Conference Committee took note of the Government’s statement that it was in the process of examining measures to guarantee a better application of the Convention, in particular with regard to the promotion of collective bargaining, and expressed the firm hope that measures would be taken without delay to guarantee the full implementation of the Convention.

Article 1 of the Convention. The Committee’s previous comments concerned the need to provide further protection against anti-union discrimination. The Committee had noted the information provided by the Government to the effect that it had been working on 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 - an approach endorsed by the tripartite Labour Advisory Board.

The Committee notes from the Government’s report that the Government has been working on a draft amendment bill on this issue but given the complexity of the matter more time is needed. The Committee requests the Government to indicate in its next report any progress made in the adoption of the bill. Noting that this issue has been under examination since 1999, the Committee hopes that the bill will be adopted as soon as possible.

Article 4. 1. Measures to promote collective bargaining. The Committee’s previous comments concerned the need to strengthen the collective bargaining framework, pursuant to comments made by the International Confederation of Free Trade Unions (ICFTU) and the Hong Kong Confederation of Trade Unions (HKCTU) and the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 1942 with regard to low levels of coverage of collective agreements which are moreover not binding on the employer, as well as the absence of an institutional framework for trade union recognition and collective bargaining.

The Committee notes the Government’s statement that it subscribes fully to Article 4 of the Convention and is committed to promoting voluntary and direct negotiations between employers and employees or their respective organizations. It also notes the measures described by the Government with a view to the promotion of collective bargaining, including promotion of effective communication at enterprise level, notably through seminars and promotional materials, an informal survey on the mode of labour-management communication, and 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). The Government emphasizes with regard to the tripartite committees that they are not merely advisory bodies. They provide, on the contrary, an effective forum for major employers’ and employees’ organizations to discuss labour issues of mutual concern and hence facilitate voluntary communication and negotiations between them. During the reporting period, as a further measure to promote voluntary negotiation, special efforts were made by these tripartite committees to focus on industry-specific people management issues. As a result, employers’ and employees’ organizations in some industries, such as property management and hotel and tourism industries, have agreed on industry-specific good people management guidelines which place specific emphasis on the importance of effective communication between employers and employees. In September 2004, the three tripartite committees on catering, retail and hotel and tourism industries jointly organized a large-scale labour relations seminar for employers and employees of these industries.

The Committee also notes from the Government’s report that, although statistics on collective bargaining are not available, collective agreements are quite common in some trades such as printing, construction, public bus and air transport industries as well as ship maintenance and the goods loading and unloading industries. Many of these agreements have benefited from the Labour Department’s conciliation services.

The Committee takes note of this information, in particular, the adoption of collective agreements in the abovementioned sectors. It requests the Government to indicate in its next report any further sectors covered by collective agreements, as well as the level of coverage (number of collective agreements and workers covered). Noting, moreover, that effective communication and tripartite dialogue cannot function as a substitute for bipartite negotiations, although they may be useful tools for the promotion of a positive industrial relations climate at the highest level, the Committee requests 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.

2. 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 to take all necessary measures so as to guarantee the right of public employees who are not engaged in the administration of the State to negotiate collectively their conditions and terms of employment.

The Committee notes from the Government’s report that the Government has established within the civil service an elaborate three-tier staff consultation mechanism which operates in compliance with the spirit and principles of Article 4 of the Convention for consultation between management and staff on various issues of concern to civil servants, including terms and conditions of employment of public employees, regardless of whether they are engaged in the administration of the State. The Government will build on this machinery and put in place customized procedures or forums to engage staff representatives in more intensive consultation on the terms and conditions of employment of civil servants, where necessary and appropriate. It is now working closely with staff on the development of an improved civil service pay adjustment mechanism to underpin the established policy of maintaining civil service pay at a level broadly comparable to that of the private sector. To this end, in April 2003, the Government set up a consultative group which already functions as a regular forum for intensive discussions with the participation of the staff sides of the four central consultative councils and the four major service-wide staff unions.

Taking due note of this information, the Committee requests the Government to indicate in its next report any measures discussed or adopted as a result of the work of the consultative group on an improved civil service pay adjustment mechanism. Moreover, noting once again that public servants who are not engaged in the administration of the State have the right to negotiate collectively their conditions and terms of employment, the Committee once again requests the Government to indicate, in its next report, any measures taken with a view to extending the right to collective bargaining to this category of civil servants. The Committee finally requests the Government to provide further information on the various 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.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the Government’s report. The Committee also takes note of the comments made by the International Confederation of Free Trade Unions (ICFTU) and the Hong Kong Confederation of Trade Unions (HKCTU) concerning anti-union discrimination and obstacles to collective bargaining. The Committee notes the Government’s observations in response to the ICFTU’s comments.

Article 1 of the Convention. The Committee takes note of the ICFTU and HKCTU comments which refer to widespread acts of anti-union discrimination due to deficiencies in the legal regime of protection against anti-union discrimination. The Committee notes that the Government refutes these comments and emphasizes that legislation affords adequate protection in this respect. The Committee also notes that the Government has been working on 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. This approach has been endorsed by the Labour Advisory Board which has an equal number of employer and employee representatives. The Committee requests the Government to keep it informed of developments in this respect.

Article 4. The Committee also observes that according to the ICFTU comments, less than 1 per cent of the workforce is covered by collective agreements, which are moreover not legally binding, while the absence of an institutional framework for union recognition and collective bargaining (this specific point is also stressed by the HKCTU), including in the public sector, forces to some extent trade unions to serve mainly as pressure groups and organizers or advisers of workers. The Committee notes that the Government refers to the voluntary nature of negotiations in the framework of the Convention. The Committee recalls, however, that in its previous comments it had requested the Government to give serious consideration to the adoption of legislative provisions which would promote voluntary negotiation between employers’ and workers’ organizations with a view to regulating the terms and conditions of employment by means of collective agreements, since the Government had stated that machinery for negotiation had not been set up. The Committee recalls, moreover, that its comments were made pursuant to the conclusions reached by the Committee on Freedom of Association in Case No. 1942, with respect to the appropriateness of adopting objective procedures for determining the representative status of trade unions for collective bargaining purposes in view of the absence of legal protection for collective bargaining, the marginal representation of trade unions, and the fact that only very few workers and industries were covered by collective agreements which were moreover not binding and often not followed by the employers (311th Report, paragraphs 235-271, approved by the Governing Body at its November 1998 session).

In this context, the Committee notes with regret that according to the Government’s report, in December 2002 the Legislative Council once again voted down a motion calling for the enactment of legislation on collective bargaining. Nevertheless, the Committee recalls that in previous reports, the Government had stated that a few collective agreements had been concluded in the industries of construction, printing, ship maintenance, goods loading and unloading, and transportation, while the Labour Department had taken measures to encourage and promote voluntary and direct negotiation between employers and employees or their respective organizations at the enterprise level and undertook conciliation, whenever voluntary negotiations failed, to encourage the parties to sign an agreement. The Committee hopes that the Government will take additional measures in this direction.

The Committee also notes from the report that the Government’s policy is to encourage and promote collective bargaining on a voluntary basis and to continue to promote tripartite dialogue through nine tripartite committees in the sectors of catering, construction, theatre, warehouse and cargo transport, property management, printing, hotel and tourism, cement and concrete as well as the retail industries. The Committee notes that, according to the Government, these tripartite committees seek to foster an environment conducive to collective bargaining and have assisted the Government in producing sample (apparently individual) employment contracts (catering, cargo transport and construction industries) and reference guides (hotel and tourism industry).

The Committee emphasizes that tripartite committees do not constitute negotiating bodies in the meaning of Article 4 of the Convention since these committees include government representatives in addition to employers’ and workers’ organizations and seem to play a merely advisory role. With respect to the measures taken so far by the Government to promote bipartite collective bargaining, the Committee considers that much further progress needs to be made. The Committee therefore once again urges the Government to indicate in its next report any further measures adopted or contemplated including the promotion of new bipartite collective agreements, as well as any new draft legislation which encourages and promotes the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements.

With regard to the public sector in particular, the Committee notes the Government’s statement that it sees no need for a collective bargaining arrangement with civil servants given the existence of a well-established and widespread consultative machinery in this sector with relevant staff unions/associations which the Government describes in detail; in cases of considerable change in conditions of service when an agreement cannot be reached, the matter "may" be referred to an independent commission of inquiry whose recommendations are binding. The Committee notes, however, that "while Article 6 of the Convention allows public servants engaged in the administration of the State to be excluded from its scope, other categories should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment including wages" (see General Survey on freedom of association and collective bargaining, paragraph 262). The Committee therefore requests the Government to take all necessary measures so as to guarantee the right of public employees who are not engaged in the administration of the State, to negotiate collectively their conditions and terms of employment.

The Committee also notes from the Government’s previous report that it does not have statistics on the number of collective agreements as there is no statutory requirement of reporting the collective agreements reached. The Committee requests the Government to take all necessary measures so as to collect information in this respect and to provide detailed information in its next report on the number of collective agreements reached, as well as the sectors and number of workers covered by such agreements.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information supplied by the Government in its report.

Article 1 of the Convention. In its previous comments, the Committee had recalled that Article 1(2)(b) of the Convention covered in addition to dismissal, acts which "otherwise" prejudiced a worker by reason of union membership or because of participation in union activities such as transfer, relocation, demotion or denial of promotion, deprivation or restrictions of all kinds on remuneration, social benefits and vocational training and had requested the Government to review its legislation with a view to ensuring that provision was made for protection against all acts of anti-union discrimination, and not just dismissals. The Committee notes the Government’s statement that sections 21B and 21C of the Employment Ordinance provide protection for employees against various acts of anti-union discrimination, including but not confined to dismissals, during employment. The Government indicates that section 21B(1) provides for the right of employees to trade union membership and to participate in union activities. Under section 21B(2) of the Employment Ordinance, an employer who dismisses, penalizes, or otherwise discriminates against an employee for exercising his trade union rights commits an offence and is liable, on conviction, to a fine of HK$100,000. The Committee takes due note of this information.

With regard to the issue of the requirement of prior mutual consent of both the employer and employee concerned in the absence of which a worker may not be reinstated but instead awarded compensation, the Government indicates that it has reviewed the existing provisions on reinstatement under the Employment Ordinance. The recommendation of the review is that the relevant provisions be amended to the effect that, where an employee, who has been found to be unreasonably and unlawfully dismissed (including dismissal on grounds of anti-union discrimination), makes a claim for reinstatement or re-engagement, the Labour Tribunal may make an order of reinstatement or re-engagement if it considers it appropriate without the need to secure the consent of the employer. The Government adds that an Employment (Amendment) Bill to give effect to the legislative proposal is under way. The Committee takes note of this information with interest and requests the Government to keep it informed of developments regarding this amendment to the Employment Ordinance which would enable the Labour Tribunal to make an order of reinstatement/re-engagement without the need to secure the employer’s consent if the Tribunal considers it appropriate.

Article 4. In its previous comments, the Committee had requested the Government to give serious consideration to the adoption of legislative provisions which would promote voluntary negotiation between employers’ and workers’ organizations with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee had also requested the Government to indicate the number of collective agreements in force as well as the number of workers and industries covered by such agreements during the reporting period.

The Committee notes the Government’s statement that the setting up of the Workplace Consultation Promotion Unit within the Labour Department in 1998 demonstrates its commitment to promoting voluntary collective bargaining. At the enterprise level, the unit provides a comprehensive range of services to encourage employers to enter into direct negotiations with their employees or unions on employment issues. At the industry level, the unit has made remarkable progress in promoting tripartite dialogue by increasing the number of industry-based tripartite committees from two to eight in the past three years. The Government indicates that collective agreements have been concluded in some companies. At the industry or trade level, collective agreements have been reached in two construction trades, printing, ship maintenance, as well as the goods loading, unloading and transportation industries. However, as there is no statutory requirement of reporting the collective agreements reached, the Government does not have statistics in this respect. Finally, the Government points out that in 1998 and 1999, the Legislative Council debated and voted down twice motions calling for the enactment of legislation on collective bargaining. The Government respects the views of the Legislative Council and considers that at this stage there is no imminent need to introduce legislation on collective bargaining.

The Committee notes the explanations given by the Government concerning the efforts made at the enterprise and industry levels with a view to fostering an environment conducive to collective bargaining. The Committee must recall however that the right to bargain freely conditions of work with employers is an essential element of freedom of association and trade unions should have the right, through collective bargaining, to seek to improve the living and working conditions of those whom the unions represent. In this respect, the Committee had noted with concern, in its previous direct request to the Government, the conclusions of the Committee on Freedom of Association in Case No. 1942 (311th report, paragraphs 235-271, approved by the Governing Body at its November 1998 session). The Committee on Freedom of Association had noted, inter alia, that the absence of legal protection for collective bargaining had resulted in the marginal representation of trade unions in Hong Kong with only very few workers covered by collective agreements in a very limited number of industries, such as some construction trades, printing and stevedore, but that the agreements reached were not binding and very often not followed by the employers. The Committee on Freedom of Association had also considered that the case at hand furnished a clear illustration of the appropriateness of adopting provisions laying down objective procedures for determining the representative status of trade unions for collective bargaining purposes.

In light of the obligation incumbent upon the Government to promote collective bargaining as defined in Article 4 and the absence of legal stipulation or protection thereof as noted by the Committee on Freedom of Association, the Committee once again requests the Government to give serious consideration to the adoption of legislative provisions which would promote voluntary negotiation between employers’ and workers’ organizations with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee further requests the Government to keep it informed of developments in this regard and reminds it that it may avail itself of ILO technical assistance on this issue.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the information supplied by the Government in its first report. The Committee also notes the conclusions of the Committee on Freedom of Association in Case No. 1942 (see 311th Report, paragraphs 235-271, approved by the Governing Body at its November 1998 session).

Article 1 of the Convention. The Committee notes that article 18(1) under section 8 of 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 further notes the Government's statement that new provisions on employment protection were enacted under the Employment (Amendment) (No. 3) Ordinance, 1997, on 27 June 1997 to, inter alia, strengthen the protection of employees against acts of anti-union discrimination. The Committee notes, however, that section 32A(1)(c)(i) of the Employment Ordinance provides for protection only against dismissal of workers on grounds of union activities and section 32A(5)(a) of the same Ordinance entitles an employee to make a claim for remedies only in relation to a dismissal on grounds of trade union membership, office or activities. The Committee recalls, however, that Article 1(2)(b) of the Convention covers, in addition to dismissal, acts which "otherwise" prejudice a worker by reason of union membership or because of participation in union activities such as transfer, relocation, demotion or denial of promotion, deprivation or restrictions of all kinds on remuneration, social benefits and vocational training (see 1994 General Survey on freedom of association and collective bargaining, paragraph 212).

The Committee further notes the Government's statement that if the employer fails to show a valid reason for the dismissal, the labour tribunal may make an order for reinstatement or re-engagement subject to the mutual consent of the employer and the employee. Where no order for reinstatement or re-engagement is made, the labour tribunal may award to the employee terminal payments and compensation of up to a maximum of HK$150,000. The Committee considers, however, that legislation which allows the employer in practice to terminate the employment of a worker on condition that he pay the compensation provided for by law in all cases of unjustified dismissal, when the real motive is the worker's trade union membership or activity, is inadequate under the terms of Article 1 of the Convention, the most appropriate measure being reinstatement (see 1994 General Survey, op. cit., paragraph 220). In this regard, the Committee takes due note of the Government's statement that it has undertaken to review the requirement of mutual consent for reinstatement under the Employment Ordinance and that once the review is completed, the Government will consult the Labour Advisory Board.

In order to bring its legislation into complete conformity with Article 1 of the Convention, the Committee requests the Government to review the Employment Ordinance with a view to ensuring that provision is made in it for: (i) protection against all acts of anti-union discrimination; and (ii) the possibility of the right to reinstatement which would not be conditional upon the prior mutual consent of both the employer and the employee concerned. The Committee requests the Government to keep it informed of developments in this regard.

Article 4. The Committee notes from the Government's report that the Labour Department has taken measures to encourage and promote voluntary and direct negotiation between employers and employees or their respective organizations at the enterprise level, and tripartite dialogue at the industry level. Moreover, to strengthen the promotion of voluntary and direct negotiation between employers and employees, the Labour Department has, since April 1998, set up the Workplace Consultation Promotion Unit which encourages and advises individual enterprises on the setting up of effective communication channels and staff consultative machinery by organizing a variety of promotional activities, which include training courses, workshops, visits and tailor-made consultative services.

The Committee would nevertheless recall that Article 4 of the Convention stipulates that the Government take measures to encourage and promote voluntary negotiation between employers and workers' organizations with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee observes with concern that the Committee on Freedom of Association noted in this respect that:

... the absence of legal protection for collective bargaining has resulted in the marginal representation of trade unions in Hong Kong with only very few workers covered by collective agreements in a very limited number of industries, such as some construction trades, printing and stevedore; but the agreements reached are not binding and very often not followed by the employers. Furthermore, the Government does not comment on the concrete examples given by the complainant on the experience of certain major organizations in Hong Kong -- such as the Hong Kong International Terminal Group Employees' General Union, the Hong Kong Telephone Co. Ltd. Staff Association, and the Kowloon Motor Bus Co. Ltd. Staff Association -- which have witnessed their employers' refusal to negotiate terms of employment or alternatively to implement agreements that have been negotiated (see Case No. 1942, op. cit., paragraph 269).

In light of the obligation incumbent upon the Government to promote collective bargaining as defined in Article 4 of the Convention and the absence of legal stipulation or protection thereof as noted by the Committee on Freedom of Association, the Committee would request the Government to give serious consideration to the adoption of legislative provisions which would promote voluntary negotiation between employers and workers' organizations with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee also requests the Government to indicate, in its next report, the number of collective agreements in force during the period covered by the Government's report as well as the number of workers and industries covered by such agreements.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

Article 1 of the Convention. With reference to its previous comments, the Committee notes with satisfaction that the level of fines for violating the provisions of sections 21B and 21C of the Employment Ordinance on protection of workers against anti-union discrimination has been increased from HK$25,000 to HK$100,000 with effect from 14 December 1995.

The Committee further notes that the Hong Kong Government has recently proposed amendments to the Employment Ordinance to enable employees dismissed on grounds of union membership or activities to make a claim for compensation to be dealt with by a tribunal where the adjudication officer would be empowered to make an award or order reinstatement of the employee, subject to the mutual agreement of the employer and employee concerned. This proposal has been endorsed by the tripartite Labour Advisory Board and the legislative process is now under way. The Committee requests the Government to continue to keep it informed of the progress made in adopting these proposals, as well as any other steps taken to improve the protection provided against acts of anti-union discrimination.

Article 2. The Committee recalls that its previous comments referred to the need to ensure effective protection of workers' organizations and employers' organizations against acts of interference by each other. It had noted the Government's indication that, since administrative measures had worked well to implement this provision, specific legislative measures had not been considered necessary. In its latest report, the Government indicates the types of administrative measures taken in the past year to ensure protection against acts of interference, including through the examination of union accounts and the carrying out of inspection and promotion visits. The Government continues to indicate that these measures have worked well to give effect to this Article of the Convention, but that it will continue to monitor the situation and ensure adequate protection to workers' and employers' organizations against acts of interference by each other. The Committee requests the Government to continue to keep it informed in future reports of any measures taken to ensure the application of this provision of the Convention.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the detailed information supplied by the Government in its report, as well as the observations of the Hong Kong Confederation of Trade Unions (HKCTU) and the reply of the Government thereto.

1. Article 1 of the Convention. The Committee notes the HKCTU's statement that despite the recent review of the labour relations system undertaken by the Hong Kong Government, victims of anti-union discrimination do not have recourse to reinstatement as a remedy. The Government states that while it has carefully considered the option of reinstatement as a remedy in the event of discriminatory termination of employment, it is found to be impracticable and unworkable in the context of Hong Kong. The remedy of reinstatement would be difficult to enforce since employers are very often unwilling to take back the employees concerned. The Government therefore considers that remedy in the form of monetary compensation would best suit the Hong Kong situation.

The Committee reiterates that the Government should take measures to reinforce the protection of workers against anti-union discrimination in respect of their employment by ensuring that effective and sufficiently dissuasive sanctions are applied in practice.

2. Article 2. The HKCTU states that the Employment Ordinance does not protect workers against acts of interference by employers or their organizations. The Government responds that section 21B(2) of this Ordinance, which stipulates that any employer or any person acting on behalf of an employer who, inter alia, prevents or deters, or does any act calculated to prevent or deter, an employee from exercising the rights conferred on him under section 21B shall be guilty of an offence and shall be liable on conviction to a fine of HK$20,000, provides for adequate protection against interference.

The Committee would recall, however, that Article 2 requires that protection be granted to organizations of workers and employers against acts of interference and, in particular, acts which are designed to promote the establishment of workers' organizations under the domination of employers' organizations, or to support workers' organizations by financial or other means, with the object of placing such organizations under the control of employers or employers' organizations. The Committee therefore would request the Government to take steps to ensure that its legislation provides adequate protection to workers' and employers' organizations against acts of interference by each other, in conformity with the Convention.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the information supplied by the Government in its report.

1. Article 1 of the Convention. With reference to its previous comments concerning the need to reinforce the protection of workers against anti-union discrimination by ensuring that effective and sufficiently dissuasive sanctions are applied in practice, the Committee notes the Government's statement that violation of the anti-union discrimination provisions is a criminal offence, the maximum penalty of which is a fine of HK$25,000. To increase the deterrent effect, legislative process is under way to raise the maximum fine to HK$100,000. Moreover, the Government has proposed to amend the law to the effect that an employee dismissed on grounds of union membership or activities may make a claim for compensation to the Labour Tribunal and the burden of proving that the dismissal is not discriminatory should rest with the employer.

The Committee takes note of this information; it would request the Government to keep it informed of any progress made in adopting these legislative amendments.

2. Article 2. As regards protection to workers' and employers' organizations against acts of interference by each other, the Committee notes that the Government points out that under section 36 of the Trade Unions Ordinance (TUO), contributions from employers or employer organizations, if any, must appear in the statement of accounts that every registered trade union is required to furnish annually to the Registry of Trade Unions. Section 37 of the TUO further provides that the account book of a registered trade union shall be open to inspection by members of the union and the Registrar. According to the Government, these provisions ensure that no employers can gain domination over employee organizations through financial support. Moreover, visits by officers of the Labour Department to trade unions also help to detect any acts of interference against employee organizations by employers. The Government considers that since administrative measures have worked well to implement this provision of the Convention, specific legislative provisions have not been considered necessary.

[The Government is asked to report in detail in 1996.]

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the detailed information supplied by the Government in its report, as well as the observations of the Trades Union Congress (TUC) and the reply of the Government thereto. It further notes the conclusions of the Committee on Freedom of Association in Case No. 1553 (281st Report of the Committee, approved by the Governing Body at its 252nd Session (February-March 1992)).

1. Article 1 of the Convention. The Committee notes the TUC's statement that although section 21 of the Employment Ordinance prohibits any act of anti-union discrimination, the burden of proof is placed on the victim who has to establish that the only reason for discrimination was the exercise of trade union rights. The Government, for its part, replies that violation of the anti-union discrimination provisions under the Employment Ordinance is a criminal offence, the maximum penalty for which is a fine of $20,000. Moreover, the burden of proof in a criminal case rests with the prosecution, and not on the victim, although the success of a prosecution case would depend very much on whether there is sufficient evidence. In reply to the TUC's argument that there are no remedial measures which could benefit the victim of anti-union discrimination - since no compensation is required from the employer to remedy the loss to the victim, nor can reinstatement be imposed by the Court - the Government states that a recent review of the labour relations system in Hong Kong has recommended that an employee dismissed on grounds of union membership or activities may make a claim for compensation to the Labour Tribunal, and the burden of proving that the dismissal is not discriminatory would rest with the employer. An employer failing to discharge the burden of proof will be required to pay compensation to the employee, the amount of which would be decided by the court. Various parties including the Labour Advisory Board, trade unions, as well as other employee and employer organizations, are presently being consulted on the proposal.

The Committee notes, as it has in previous direct requests, that protection of workers against anti-union discrimination in respect of their employment is provided for under sections 21B and 21C of the Employment Ordinance. However, as regards measures for compensating a unionized worker for prejudice suffered, the Committee considers that the reintegration and reinstatement in his post of a worker who has been dismissed or discriminated against for anti-union reasons constitute the most appropriate means of redressing acts of anti-union discrimination. Legislation which includes protective provisions, but which allows the employer in practice to terminate the employment of a worker on condition that he pays the compensation provided for by law in all cases of unjustified dismissal, when the real motive is his trade union membership or activity, is inadequate under the terms of Article 1 of the Convention (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 220).

The Committee trusts that the above-mentioned review of the labour relations system in Hong Kong will take into consideration the principle enunciated above and requests the Government to keep it informed of any measures it has taken or envisaged in this respect.

[The Government is asked to report in detail for the period ending 30 June 1994.]

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee takes note of the comments made by the Federation of Civil Service Unions in a communication dated 8 May 1989 concerning the situation of collective bargaining in practice.

In view of the fact that the Government has not yet responded to these comments, the Committee will examine them in detail along with the points raised in its previous direct request, during its regular examination of the application of the Convention.

In addition, it recalls its previous comments which read as follows:

The Committee notes the information supplied in the Government's report. The Committee notes that there are approximately 400,000 trade union members in Hong Kong. This represents some 14 per cent of the total workforce. The Committee also notes that there are some 88 "comprehensive" collective agreements known to the Labour Relations Division. These agreements apply to 120,000 workers, representing approximately 4 per cent of the total workforce. These figures appear to have remained more or less constant over a substantial period.

The Committee is mindful of the explanatory factors referred to in the Government's report for 1982-84, as amended in the reports for 1984-86 and 1986-88. Nevertheless, the levels of union membership and of bargaining coverage do appear to be disproportionately low. This appears to be inconsistent with the "growing tendency towards collective bargaining in some of the large public utilities" to which the Government referred in its report for 1982-84. Accordingly, the Committee requests the Government to provide more detailed information as to the reasons for the low levels of union membership and bargaining coverage in Hong Kong. The Committee also requests the Government to provide more detailed information as to the activities of the Labour Department in promoting collective bargaining as required by Article 4 of the Convention.

Articles 1 and 2. The Committee requests the Government to indicate the legislative provisions, accompanied by civil remedies and penal sanctions, which protect the workers against acts of anti-union discrimination, and the workers' organisations against acts of interference by employers or their organisations.