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Trades Union Congress

Congress House, Great Russell Street, London WC1B 3LS Telephone: 071-636 4030; Fax: 071-636 0632; Telex: 268 328 TUCG

Mr. Keith Andrews,

International Relations Branch,

Employment Department,

Steel House,

Tothill Street,

London SWIH 9NF.

Dear Keith,

TUC

Your reference:

repl

#rey/WWW/SES/FUNerence:

When telephoning please ask for:

Date:

December 8 1993

ILO 1993 Article 22 Reports on the Application of Ratified

Conventions in Hong Kong

Convention 98 on Freedom of Association and Collective Bargaining

Further to my letter of October 27 I am now able to send to you the TUC's comments on the report of the Hong Kong Government about the application of Convention 98 which the Hong Kong Confederation of Trade Unions has asked us to make on their behalf. We have checked and the Hong Kong Confederation of Trade Unions has confirmed that it has never received any papers before or after their submission to the ILO from the Labour Advisory Board or from the Hong Kong Labour Department. I hope that the Government shares our desire to see consultation with independent trade unions develop in Hong up to 1997 and afterwards.

Article 1

Section 21 of the of the Employment Ordinance prohibits any act of discrimination against the employee's exercise of the right to organise. However, the burden of proof is placed on the victim, who has to establish that the only reason for discrimination was the exercise of trade union rights. Dismissal for reasons other than union engagement would be lawful. Section 7 of the Employment Ordinance permits employers to dismiss employees without justification or notice while providing minimum compensation. As the legislation provides no regulation of unjustified termination of employment, employers are able to evade the accusation of anti-union discrimination. Since the legislation was implemented in 1974, one case has come to court, in 1990. This illustrates, in our view, the difficulties trade unionists who suffer discrimination face in proving such cases. In that case two trade union officers who were employed

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General Secretary: John Monks Deputy General Secretary. Brendan Barber

Assistant General Secretary: David Lea, OBE

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the New Bright Industry Co. had been dismissed and they suspected that they had been the victims of anti-union discrimination. In court the employer stated that the reason for dismissal had been a breach of other company rules amounting to repudiation of their contract of employment. The victims were unable to prove that their trade union activity had been the main cause of their dismissal and the prosecution failed..

The enforcement of this legislation is the responsibility of the Labour Department. There are no measures in the legislation to prevent the possibility of anti- union discrimination, nor are there any remedial measures which could benefit the victim of such discrimination. Violation of the legislation can lead to a HK$20,000 to the Court, but no compensation is required from the employer to remedy the loss to the victim, nor can reinstatement be imposed by the Court. A submission on the rights of working people made to the UN Human Rights Commission by the Hong Kong Human Rights. Commission in 1990 emphasised this and other points relating to freedom of association and the right to organise in Hong Kong.

Article 2

In most cases, employers adopt a divide and rule strategy towards unions or refuse to recognise unions or their representative at all. Negative sanctions are used to deter routine union activities. For example, after a strike of members of the Cathay Pacific Airways Flight Attendants Union in January 1993 has ended, the management sent letters to all employees asking them whether they would like to continue or discontinue the usual practice of check-off of union dues.

Article 4

The Hong Kong Government promotes a system of joint consultation, which they claim is congruent to the spirit of Article 3. It is the view of the HKCTU that joint consultation cannot be defined as a form of collective bargaining. Ioint consultation has no status in Hong Kong law and its adoption by employers is purely voluntary. The foreword of the Handbook of Joint Consultation published by the Hong Kong Government states: Briefly, joint consultation is the process of discussion between management and employees on matters of joint concern. (It is not a negotiating body). It provides a recognised means of consultation between management and employees so that there is a two-way flow of ideas thereby utilizing to the full the experience and knowledge of the employees in the establishment. It is clear that such a process does not amount to collective bargaining. Employees are invited to be consulted and the

· management is free to decide whether to accept or ignore the opinions of employees. Since joint consultation is instituted only by the employer, the agenda for discussion is restricted and issues such as wages and benefits are usually excluded.

The guidelines suggest only the election of representatives directly from the employees, not from the trade unions, which clearly weakens the ability of representatives to be effective and lays them open to intimidation and manipulation by the employer.

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