2008 Annual Survey of violations of trade union rights - Hong Kong SAR (China)
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Hong Kong SAR (China), 20 November 2008, available at: http://www.refworld.org/docid/4c52ca8b2d.html [accessed 28 April 2016]|
ILO Core Conventions Ratified: –
2007 marks the 10th anniversary of the handover of Hong Kong from British to Chinese sovereignty. In the past decade, little has changed in terms of legislation on working conditions and trade unionism. Despite some protection provided by the labour laws, workers and unions continue to have little opportunity to defend their rights in practice. Collective bargaining rights are regularly ignored. Workers cannot bargain for a reasonable salary to compete with inflation. Real wage levels of local low-skilled workers are continuing to decline, thereby aggravating the growing problems facing the "working poor". The Hong Kong Confederation of Trade Unions, one of the ITUC Hong Kong affiliates, and community groups are still facing prosecution for campaigning in support of 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 have been 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.
Many employment contracts stipulate that absence from work may lead to dismissal and 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 of labour litigation: There is a labour tribunal to deal with labour disputes. But litigation can prove prohibitively expensive and time consuming. Many judgments are not enforced and legal aid for such cases is difficult to obtain.
Discrimination: Neither of the ILO core conventions on discrimination (nÂ° 100 and 111) applies to Hong Kong, despite the fact that the People's Republic of China itself has ratified both of them (Convention 111 as recently as January 2006). Hong Kong's legislation prohibits discrimination on the grounds of gender, disability, and family responsibility, but no legal provision has yet been made to end discrimination against the large population of migrant workers or discrimination on grounds of sexual identity and race. The Hong Kong government has, however, recently issued a draft race discrimination bill, which remains worryingly vague on many issues including education. Unions and local groups are concerned that it excludes the actions of government officials and fails to address the issue of discrimination in employment.
Trade union rights in practice and Violations in 2007
Background: 2007 marks the 10th anniversary of the handover of Hong Kong from British to Chinese sovereignty. A historic strike by bar benders in September lasted for 36 days and ended with a small but symbolically important wage increase.
Universal suffrage: 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. Since then, demand has grown for the promised universal suffrage, guaranteed under the Basic law, Hong Kong's mini-constitution. The Basic Law, while guaranteeing that the aim is for the chief executive to be elected through universal suffrage, makes no specific comment on when this might take place, and suggested dates continue to be pushed further into the future. The anniversary of Hong Kong's return to China on 1 July was marked as usual by a march for democracy, which saw 68,000 people call for universal suffrage among other concerns.
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.
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.
Increased exploitation: Hong Kong is one of the few developed economies without legislation on maximum working hours. Working weeks of up to 60 hours and more are not unusual, and yet the share of national income that goes to workers is among the lowest among the industrialised countries. Recent 2007 figures show inequality has risen significantly in the past decade. The number of working poor who earn half or less of the median wage has risen from 300,000 in 2006 to around 500,000 in 2007 while the number of those working over 55 hours a week has risen from 510,000 to 830,000 in 2007. Some 200,000 foreign domestic workers in Hong Kong contribute one percent of Hong Kong's GDP but suffer extensive rights and contract violations.
Minimum wage: In the past few years, the Hong Kong Confederation of Trade Unions has been coordinating a campaign to fight for a minimum wage. The government has been resisting these efforts and instead has formed a voluntary "wage protection movement" (WPM). Under the WPM, participating corporations are encouraged to offer cleaning workers and security guards wages not lower than the relevant average market rates and enter into written employment contracts. Trade unions and labour groups argue rightly that this "movement" is a sham, offering employees little protection, and that it allows the government to continue to resist efforts to discuss the introduction of a minimum wage amid the business sector's talk of a minimum wage "destroying Hong Kong's "competitiveness".
Union members threatened for taking part in strike: The HKCTU affiliate, Hong Kong Horse Racing (Local) Association, called for its members (riders) to obtain race meeting allowances set at the same level as grooms. During negotiations between the union and the Jockey Club management, the Jockey Club unilaterally sent a new (and unequal) allowance scale notice to all individual riders. The company also threatened to discipline or dismiss any work riders taking part in strike. On 13 January 2007, some 80 union members joined a sit-in on an access road at one of the club's racecourse. One protestor was reportedly injured during a scuffle with security staff. Management eventually agreed to continue negotiations.
Metal Construction workers on strike – government refuses to negotiate except with pro-Beijing union: Around 2,000 bar benders working on various construction sites in Hong Kong went on strike on 6 August 2007 in protest against low wages and long working hours. More than two decades ago, workers, in order to avoid competition amongst themselves, agreed to set a standard wage for their trade. However, employers wanted to ensure a stable supply of workers and agreed with the small Hong Kong Construction Industry Bar-bending Workers' Union (BWU) to hold annual wage negotiations. Daily wages have, however, dropped from HKD 1,300 in 1997 to the present rate of HKD 800, and many workers were employed on rates of only 500 HKD a day. The BWU, an affiliate of the pro-Beijing Hong Kong Federation of Trade Unions that has avoided pushing for wage increases and increased benefits, postponed the annual negotiations, and this triggered a strike amongst fears of continued salary stagnation or reductions. The strike lasted over 36 days – one of the longest ever in recent Hong Kong history – and garnered massive public support. It also revealed very publicly the differences between the pro-government Federation of Trade Unions and the Confederation of Trade Unions. The BWU criticized the workers for striking and initially refused to support them, so the HKCTU stepped in to negotiate. However, the government refused to negotiate with the HKCTU and the elected worker representatives. This led to a complaint from the ITUC calling for the government to negotiate. Eventually, the BWU was allowed to negotiate alongside the HKCTU, and a pay deal was reached that was only a modest success in terms of the pay demands but crucially gave the workers their shorter eight hour day – a long-term demand. The settlement is the first genuinely negotiated industry-wide collective agreement in Hong Kong.
Unionists arrested after organizing protest for metal workers (bar benders): Three unionists were arrested on 10 August 2007 after helping metal workers in their fight for a pay rise. The arrested included a staff member of the HKCTU. Police told them they were suspected of instigating an illegal assembly. They were later released and no charges were laid.
Cleaner sacked after giving evidence to sue employer: A cleaner employed by Cheung Kee Environmental Limited Company was dismissed in November 2006 after giving evidence to sue the employer for not granting statutory holidays. The Cleaning Service Industry Workers Union, a HKCTU affiliate, helped the worker file a complaint to the Labour Department. The department then filed a lawsuit prosecuting the company for unfair dismissal. On 4 October 2007 the Magistrate gave a ruling that the company was acquitted of the charges, as the prosecution had failed to prove that the sacking of the cleaner was a result of him assisting in an investigation. The Labour Department refused to file an appeal to higher court.
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 in mainland China. Other poisoning cases have also been reported in Hong Kong production facilities. 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. In June 2006, Gold Peak, through its lawyers, wrote to the groups who had signed and supported a 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. The case against the three groups is still active today but Gold Peak has made no further arrangement to fix a date for a formal court hearing since September 2007 – the last exchange of legal documents between the two sides.
Cathay Pilots still fighting unfair dismissal: Pilots at 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 reinstated, 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 at the end of 2007.