Note on Hong Kong Trade Union Registration
(Amendment) Ordinance
60/€
Registration
1.
Paragraphs (b) and (c) of Clause 4, which provided for the exemption from registration of a temporary trade union formed for the purposes of a single trade dispute, have been deleted. The deletion of Clause 8, which provided that the provisions of the Ordinance applied to registered and exempted trade unions, is consequential. These deletions are welcomed, since the inclusion of such provisions could have encouraged the fragmentation of the trade union movement with no compensating benefits to the workers concerned.
2.
However, the original purpose behind the provisions was unclear to us, and this lack of clarity persists in a new proposal in the Bill which appears to be associated with the deletions. It is now proposed to amend the definition of 'trade union' in Section 2 of the principal Ordinance by deleting from it the words 'whether temporary or permanent'. The new definition will be:
3.
'any combination the principal objects of which are under its constitution the regulating of relations between workmen and employers, or between workmen and workmen, or between employers and employers, whether such combination would or would not, if this Ordinance had not been enacted, have been deemed to have been an unlawful combina- tion by reason of some one or more of its purposes being in restraint of trade'.
If the original intention was to provide immunity for actions in furtherance of a trade dispute in the period between the formation of a union and its registration, it would appear that it is not fulfilled by the deletion of the words 'whether temporary or permanent', since any combination still covers both temporary and permanent combinations.
4*
But our interpretation of the original proposal was that it was intended to confer immunity, in a trade dispute, on a group of workmen who went on strike or took any other action in furtherance of a trade dispute without intending to form a permanent combination, and probably without knowing that they could be regarded as having formed a combination. During the informal discussions which have taken place so far, the official view has appeared to be that it is an inevitable consequence of compulsory registration that a group of workmen acting in this way do in fact become an unlawful combination. Compulsory registration has been a feature of colonial trade union legislation for many years, but colonial governments" have not, to our knowledge, acted on such a view, if indeed they ever held it.' If it is now suggested that this interpretation is legally correct, and there is any likelihood of the Hong Kong Government acting on it, then some means should be found to protect workers in this situation. We suggest that the removal of the words 'whether temporary or permanent' does not provide the necessary protection. What is required is an amendment to Section 42 of the principal Ordinance, which at present gives immunity in a trade dispute only to registered trade unions. We would cite Section 7 of the Trade Unions Act of Nigeria - originally enacted as a colonial Ordinance - which confers such immunity on 'any person'.
We understand that there may be a fear in Hong Kong