2009 Annual Survey of violations of trade union rights - Hong Kong SAR (China)
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Hong Kong SAR (China), 11 June 2009, available at: http://www.refworld.org/docid/4c52cae72d.html [accessed 22 August 2017]|
ILO Core Conventions Ratified: –
Despite two recent advances in labour related legislation on race discrimination and some progress towards a minimum wage, Hong Kong's labour laws provide limited protection: workers and unions continue to have little opportunity to defend their rights in practice. Collective bargaining rights are regularly ignored.
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 on 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 for dealing with labour disputes. But litigation is often 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 (numbers 100 and 111) applies to Hong Kong, despite the fact that the People's Republic of China itself has ratified both (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. After many years of delay, the Hong Kong government finally implemented a Race Discrimination Bill. It remains vague on many issues including education and employment related discrimination.
The Bill allows for extensive exemptions for discrimination in recruitment including allowing discrimination based on immigration status or in favour of people who are permanent residents of Hong Kong, are indigenous to Hong Kong, have a long familial history of residing in Hong Kong, or have lived in Hong Kong for any period of time. Given the limited powers and role of the Equal Opportunities Commission, which has already come under fire for publishing a draft handbook detailing ways employers can avoid prosecution, the bill is generally seen as not only weak but also reinforcing the racism and discrimination commonly found in the Hong Kong SAR.
Trade union rights in practice and violations in 2008
Background: Legislative Committee elections in 2008, while only partially democratic, managed to return more radical pro-democratic legislators in the directly elected seats. Seats elected through the so-called "functional constituencies" continued to return mainly pro-government and pro-Beijing representatives. Hong Kong saw several high profile strikes during the summer mainly over working conditions and pay.
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 every year, suggested dates continue to be pushed further into the future.
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 % 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.
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.
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.
Minimum wage: There is no legal minimum wage except for an extremely low minimum wage set for foreign domestic helpers employed in Hong Kong. They can and do work six days a week with working days of 12 – 16 hours. Many are refused a weekly rest day despite legislation requiring this.
The HKCTU, along with other groups has been coordinating a campaign to fight for a minimum wage. The government has been resisting these efforts and instead formed a voluntary "wage protection movement" (WPM). In 2008, the government finally accepted that the voluntary scheme was not working and stated that they would work towards a minimum wage bill but one which would only cover cleaners and security guards – two traditionally low paid groups. However, after much pressure, the government has now agreed to union calls for the adoption of a universal minimum wage bill.
Cathay Pilots still fighting unfair dismissal while flight attendants win retirement equality: 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 2008.
After a long-standing campaign by local unions and supporters, Cathay Pacific agreed in July 2008 to immediately align the retirement age for all its current Hong Kong-based cabin crew to the standard age of 55. The new retirement age will affect around 5,000 Hong Kong-based cabin crew who joined after 1 July 1993, whose retirement age is 45. The retirement age for cabin crew who joined before 1 July 1993 is 55. Under this new arrangement, cabin crew who joined after 1993 will be able to choose to retire at any time between 45 and 55 while all new staff will retire at 55.