TNAG-2817-FCO40-4063-Future-of-Hong-Kong-Sino-British-Joint-Liaison-Group-sub-gro-1993 — Page 53

(b)

To establish a mediation procedure

While conciliation service helps to settle most of the trade disputes at present, it does have apparent drawbacks, namely, its use is entirely voluntary (i.e. it must have the consent of both parties) and that the conciliator has no right to make formal recommendations. To redress this deficiency, it is proposed that a mediation procedure be established under the LRO. Under the proposal, the Commissioner for Labour can appoint a list of 'neutral' persons as mediators. When the circumstances warrant it, the Commissioner is empowered to refer a dispute to mediation by a mediator without seeking the prior consent from the parties. The mediator may hold joint or separate meetings with the parties to explore possible ways towards a settlement. He may recommend terms of settlement to both parties. The recommendation of the mediator shall not be binding but could be made public. The merit of the mediation procedure is that the mediator, by virtue of his status, may have greater influence on the parties than a conciliator who is normally an officer of the Labour Department. Besides, publishing the recommended terms of settlement will exert pressure on both parties to comply.

Protection Against Unfair Dismissal

8.

Although there are no specific legislative provisions governing unfair dismissal, the provisions of the Employment Ordinance (EO) (Chapter 57) relating to long service payments (LSP) scheme provide financial compensation to a dismissed employee. This scheme is based on the premise that the dismissal of a long service employee without some form of compensation is unreasonable. It requires an employer to make a payment to a dismissed employee based on his age and length of service. This would achieve a similar effect as granting an employee monetary compensation under unfair dismissal legislation while avoiding the need for complex and expensive procedures to establish whether the dismissal is unreasonable. Apart from the LSP scheme, Part IVA of the EO protects employees from dismissal or discrimination for becoming a trade union member or official or forming a trade union, or taking part in union activities outside his working hours or within working hours with his employer's consent. In addition, there are other measures to protect employees against unfair dismissal under the existing EO, a list of which is at Annex B.