2010 Annual Survey of violations of trade union rights - Hong Kong SAR (China)
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2010|
|Cite as||International Trade Union Confederation, 2010 Annual Survey of violations of trade union rights - Hong Kong SAR (China), 9 June 2010, available at: http://www.refworld.org/docid/4c4fec76f.html [accessed 25 October 2016]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified:
Workers and unions continue to have little opportunity to defend their rights in practice. Collective bargaining rights are regularly ignored. Overall, the laws pertaining to trade union rights are lacking.
Trade union rights in law
Although the Basic Law, which is essentially the constitution of Hong Kong, contains provisions guaranteeing freedom of association, the right to organise and the right to strike, no laws have been implemented to secure the effective application of these fundamental rights. While the law protects workers against dismissal for trade union activities, it does not cover other forms of anti-union discrimination. A trade union may not use its funds as it wishes, as particularly the use of funds for political ends or for transfer to foreign trade union organisations is restricted in law. Furthermore, only those currently or previously employed in the trade, industry or occupation of the union concerned are permitted to become union officers.
The right to strike is limited, as the Public Order Ordinance authorises the use of force to break up strike pickets and demonstrations, and employers can seek an injunction order to suppress workers' protests. There is also little protection for striking workers, as the law only ensures that, were a worker to be dismissed for participating in a strike, s/he would have the right to sue the employer for compensation. There is no legal entitlement to reinstatement.
Trade union rights in practice and violations in 2009
Background: The economic crisis has increased lay-offs and pay cuts for many workers, and 2009 saw several high profile strikes. The struggle for universal suffrage has dominated Hong Kong's political life since the government's failure in 2003 to introduce a new security law. Legislative Committee elections in 2008 returned more radical pro-democratic legislators in the directly elected seats while those elected through the so-called "functional constituencies" continued to return mainly pro-Beijing representatives. June 2009 saw the largest vigil for the 20th anniversary of the Tiananmen Square massacre since 1989 itself, while the annual democracy march on 1 July, the date of the handover to Chinese sovereignty, saw a turnout of around 75,000. Local labour disputes in the first seven months of 2009 jumped 14% year on year in the wake of the economic crisis, which has seen increased government support for enterprises alongside increased calls for wage cuts, benefit cuts and lower pay by employers. In 2009, several large scale strikes ended in success and new union formation.
Weak protection: While prosecution for anti-union discrimination by employers is theoretically possible under Section 21B of the Employment Ordinance, in practice successful prosecution is difficult. Instances of dismissal or harassment for union activity are reported each year.
No recognition of collective bargaining rights: Collective bargaining is neither promoted nor encouraged by the authorities, and employers generally refuse to recognise unions. Although almost 25 % of the workforce is unionised, unions are not strong enough to force management to engage in collective bargaining. Thus, less than 1% of workers are covered by collective agreements, and those that do exist are not legally binding. Without legal protection to guarantee these rights, workers are subject to the arbitrary and unilateral actions of employers and as a consequence are denied job and income security.
The Hong Kong Confederation of Trade Unions (HKCTU) is consistently excluded from the LAB, the tripartite consultative body established by the government, unlike pro-government union federations. This exclusion means it is denied the right to participate in tripartite negotiations on labour laws and policy and excluded from bodies such as the Committee on the Implementation of International Standards, which reports to the ILO. Employers often attempt to take advantage of the disparity and political divisions among staff unions including the divide between the pro-democratic Confederation of trade unions HKCTU and the pro-Beijing Federation of trade unions. Hong Kong is one of the few developed economies without legislation on maximum working hours or minimum wages. After a long campaign by the Hong Kong Confederation of Trade Unions the government has finally agreed to draft a minimum wage bill but is still seeking to exclude foreign domestic workers.
Consultation rather than bargaining in the public sector: The government has consistently claimed that there is no need for collective bargaining rights in the public sector because the administration "consults" civil servants over their pay and conditions. However, recent civil service reforms, involving transfers, reductions in wages and benefits, retrenchment and contracting-out to the private sector, have demonstrated very clearly that the government is free to act unilaterally without consulting the affected civil servants. The introduction of legislation on wage cuts for civil servants is an example.
Nepali guards dismissed allegedly for strike action: In January, around 100 Nepali security guards were sacked after undertaking a strike over pay and conditions. The strike began after guards from the Gurkha service team of Group 4 Securicor found they were not among a group of 200 that had been given a pay rise. Kumar Gurung, the group's leader who said he had not had a pay rise in nine years, raised nine demands with management including a pay increase. Although the company claimed to have answered most of the demands, Mr. Gurung said an agreement was never reached. The labour department investigated whether the dismissals were due to the workers' union activities and therefore illegal, but in any event, following negotiations, the company agreed to re-hire those dismissed.
Lengthy delays in labour tribunals – employers ignore unions: In February, tour guides went on strike over bonuses and wages. They had originally put a case to the Labour Tribunal in 2004, but the dispute has still not been resolved. The court recently turned down an appeal by the employers, but it is believed that they will appeal again and the case could continue for a further five years. The tour guides regard the labour tribunal proceedings as a way for companies simply to delay matters, rather than a means of resolving industrial disputes. As a result of this, they have decided not to go ahead with further cases. The unions had instead asked the company to negotiate directly with them, but it had refused to do so.
Nestle workers dispute over sacking of union head: In February, a strike triggered by the suspension of two workers of a Nestlé plant, including union head Chan Bong-yin, for having shared an annual bonus (a HKD 5,000 supermarket voucher) among themselves. Whereas Nestle management stated that this 'interfered with staff competitiveness', the union believed that management was attempting to undermine the union. Union workers demanded that Nestle reinstate the workers and give the union better recognition. An agreement was later negotiated.
Protesting security guards sacked despite promises: In June, around 60-70 guards working at the Link Management Company, a property firm which bought public estates from government, were sacked after they went on strike to protest against changes in working hours and salary cuts that could have led to the dismissal of half the workforce. The dispute lasted several months. Despite promises from management not to dismiss guards during the dispute, the company proceeded with laying off guards and hiring a subcontractor to provide other guards. An agreement was finally reached in July.