2007 Annual Survey of violations of trade union rights - Hong Kong SAR (China)
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - Hong Kong SAR (China), 9 June 2007, available at: http://www.refworld.org/docid/4c52ca2bc.html [accessed 17 December 2014]|
ILO Core Conventions Ratified: –
Despite some protection in labour law, workers and unions have little opportunity for defending their rights in practice. Collective bargaining rights are regularly ignored, as university staff discovered during the year. Trade union and community groups faced prosecution for campaigning to support a compensation claim by hundreds of workers affected by cadmium exposure.
Trade union rights in law
Although the Basic Law, which is 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.
The Employment and Labour Relations Ordinance (ELRO) was introduced in 1997 specifically to repeal the laws brought in immediately prior to Hong Kong's reunification with China, which had been designed to implement the ILO core conventions. The ordinance withdrew the right to collective bargaining while retaining the basic right of workers to form trade unions. Two conditions apply to the formation of a union: a minimum number of seven members at the union's inception, and the union must be registered under the Trade Union's Ordinance.
The ELRO includes provisions to protect workers against dismissal for trade union activities but does not offer any remedies for individuals who subjected to other forms of anti-union discrimination.
Lack of protection for strikers: The right to strike is permitted by law. According to the Public Order Ordinance, a "notice of no objection" is required from the police seven days in advance (24 hours for emergencies) in order to stage an assembly or protest. It also authorises the use of force to break up strike pickets and demonstrations. Employers can also seek an Injunction Order to suppress workers protests, and have done so for example against the Hong Kong Confederation of Trade Unions for leading a protest against lay-offs by a major supermarket.
Strikers have little protection. In April 2001, the government introduced amendments to the Employment Ordinance that ostensibly increased the protection of workers against dismissal for participating in strikes. However, the amendments only ensure that, were a worker to be dismissed for strike action, he or she would have the right to sue the employer for compensation. There is still no legal entitlement to reinstatement, even if a worker is found to have been unfairly dismissed for participating in a strike. The Labour Advisory Board (LAB) had agreed in principle to laws giving the Labour Tribunal the power to order the reinstatement of unfairly dismissed workers without the consent of the employer. However, the government has taken no further action on this and no time frame for implementation has been stipulated.
Bargaining not recognised: The law still does not guarantee the right to collective bargaining. The HKSAR Government has persistently refused to implement the recommendations of the ILO Committee of Freedom of Association (CFA) on introducing legislation for the objective recognition of trade unions for the purpose of collective bargaining.
Limitation on use of funds: The ELRO restricts the freedom of a trade union to manage and use its funds as it wishes, particularly the use of funds for political ends or for transfer to foreign trade union organisations.
Eligibility for trade union office restricted: Only persons actually or previously employed in the trade, industry or occupation of the trade union concerned are permitted to become trade union officers. The ILO has on several occasions urged the HK SAR government to relax the conditions on eligibility of trade union officials and the restrictions on the use of union funds as mentioned above.
High cost for litigation: There is a labour tribunal to deal with labour disputes. But litigation can prove expensive for the employees of the big corporations as employers usually request the tribunal to transfer cases to a higher court.
Surveillance bill passed: A surveillance bill was passed giving authorities more power to tap phones and conduct other surveillance measures. The bill also covers interception of mail and e-mail, as well as physical surveillance, such as undercover infiltration, all measures that could be used to undermine the right of trade unions to operate freely. Another area of concern is that surveillance conducted by undercover officers in person, as opposed to electronic surveillance that involves devices, only requires departmental approval, not by the panel of judges.
Trade union rights in practice
Right to strike denied: Although the Basic Law contains provisions guaranteeing the right to strike, the right to strike is limited in practice by clauses in many employment contracts stipulating that absence from work may lead to dismissal. Strikes are a rarity in Hong Kong. Protest actions do occur, but very often as a result of government actions. Only one formal strike was reported in 2006.
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. By the end of 2006 there had only been two cases of successful prosecution since the enactment of the provisions years ago.
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 per cent of the workforce is unionised, unions are not strong enough to force management to engage in collective bargaining. Thus less than one per cent of workers are covered by collective agreements, and those that exist are not legally binding.
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 and pro-Beijing union federations. This exclusion means that the HKCTU 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.
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.
Consultation rather than bargaining: 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 of civil servants is a self-evident example.
Violations in 2006
Background: Manufacturing jobs continued to be lost to mainland China. The "People's Alliance for a Minimum Wage" found by the HKCTU launched a campaign for minimum wage legislation in 2006. HK SAR Chief Executive Donald Tsang refused to legislate and instead launched the much weaker Wage Protection Movement (WPM) to protect the wage level of cleaning workers and security guards through voluntary and non-legislative means.
University forced staff to sign new contract: The Hong Kong Baptist University ignored collective bargaining rights and even consultation with the union, obliging staff to sign a new contract which introduced a performance-based pay and reward structure. Two former Baptist University administrators who refused to accept new terms and conditions of employment were sacked on 10 January 2006. Six long-serving academic staff refused to sign and a special committee was set up by the university to consider whether they should be terminated. To Yiu-ming, the chair of the university staff union, was one of the six. The union says the move breaches their contracts which state that no change to benefits for permanent staff "shall come into effect unless and until the appointee has given his consent thereto in writing". Later the university backed down because of the pressure from past and present students.
Unions threatened with legal action for defending workers: Trade union and labour groups in Hong Kong, including the Hong Kong Confederation of Trade Unions (HKCTU), faced retaliation for their campaign to support workers suffering from cadmium poisoning. The workers were involved in the production of batteries for Gold Peak Industries at its Huizhou factories. They not warned of the dangers of handling highly dangerous cadmium and were initially refused masks or given inadequate protection. Many suffered excessive exposure and as a result faced huge medical bills and were unable to find new employment. Efforts to petition the authorities led to warnings from management and the Huizhou government, including threats of prosecution. A compensation fund was established in August 2005 but was so poorly managed that by mid-2006, according to Gold Peak's own statements, only four percent of the 400 workers affected by cadmium had received funds. The trade union and labour groups in Hong Kong sought to bring wider attention to the case, visiting Gold Peak's head office, attending shareholder meetings and launching a postcard campaign calling for prompt compensation and justice for the workers.
In June 2006, Gold Peak, through its lawyers, wrote to the groups who had signed and supported the postcard campaign, threatening them with legal action unless they made an official apology and an immediate payment of HKD 500,000 damages. Gold Peak followed up with a summons to three groups involved; the HKCTU, Globalisation Monitor and the Neighbourhood and Workers' Service Centre.
Cathay Pilots still fighting unfair dismissal: The pilots of Cathay Pacific Airways are still fighting for their rights. Fifty-two pilots were sacked in 2001 after they took industrial action in a dispute over pay and working hours. One pilot was subsequently reinstated. Among the 51 that were not re-instated, there were eight trade union committee members and four union negotiators. A deal was brokered in 2005 that enabled 19 pilots to apply for new jobs at the bottom of the seniority list with vastly reduced pay; only 12 were offered jobs. A further 19 continued legal actions with one being successful in the UK in 2006 and the remainder still awaiting court proceedings in HK. The others opted for ten months' salary as settlement.