INTERNATIONAL CONFEDERATION OF FREE TRADE UNIONS (ICFTU)
INTERNATIONALLY-RECOGNISED CORE LABOUR STANDARDS IN HONG KONG REPORT FOR THE WTO GENERAL COUNCIL REVIEW OF THE TRADE POLICIES OF HONG KONG(Geneva, 7-8 December 1998)
EXECUTIVE SUMMARY
At the time of the hand-over of Hong Kong to the People’s Republic of China on 1 July 1997, the Beijing government notified the ILO that four of the ILO’s seven core labour standards would be applicable to Hong Kong in its status as a Special Administrative Region, including those on freedom of association. However, the core labour standards concerning freedom of association are seriously violated in Hong Kong. Significant changes are needed in order to bring law and practice into line with the commitments Hong Kong accepted at Singapore in 1996 and Geneva in 1998 in the WTO Ministerial Declarations and in the ILO Declaration on Fundamental Principles and Rights at Work adopted in June 1998.
Despite Hong Kong’s nominal adherence to the core labour standards on freedom of association, trade union rights were subject to grave and widespread violations in Hong Kong under the former British administration and the situation has remained equally serious and in some ways has worsened in the time since the hand-over. Changes to the labour law agreed in June 1997, which would have brought Hong Kong’s legislation on freedom of association into line with the relevant core labour standards, were quickly repealed by the new administration and Hong Kong’s labour law is once again in significant contravention of the ILO conventions concerned.
Trade unions have thus been severely hampered in the current crisis in trying to represent workers in Hong Kong in the face of action by companies which are cutting wages and rejecting compensation payments for retrenched workers. This has had an impact on the price of Hong Kong’s exports and so enhanced Hong Kong’s competitiveness at the expense of countries where basic union rights are respected. This continues a pattern in which Hong Kong’s development, and its trade and investment relations with other countries, have been based upon extensive freedoms for business and restrictions on the freedom of workers.
The core labour standards on discrimination and child labour have not been notified to the ILO by the Beijing government as applicable in Hong Kong, although those on forced labour do apply. There has historically been widespread discrimination against women and recent legislation on discrimination has some key deficiencies. Migrant workers face extensive discrimination. While the legal provisions on child labour allow for employment of children as young as 13 in non-industrial establishments, child labour is not widespread. There are no reports of forced labour.
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Introduction
This report on the respect of internationally recognised core labour standards in Hong Kong is one of the series the ICFTU is producing in accordance with the Ministerial Declaration adopted at the first Ministerial Conference of the World Trade Organisation (WTO) (Singapore, 9-13 December 1996) and endorsed at the second WTO Ministerial Conference (Geneva, 18-20 May 1998) in which the Ministers stated: "We renew our commitment to the observance of internationally recognised core labour standards." These standards were further upheld in the International Labour Organisation (ILO) Declaration on Fundamental Principles and Rights at Work adopted by the 174 member countries of the ILO at the International Labour Conference in June 1998.
The ICFTU considers that the respect of core labour standards should consequently form part of the trade-related issues which are discussed at the WTO Trade Policy Review (TPR) meetings and is accordingly preparing reports on the respect of fundamental workers' rights in all the countries which are subject to TPRs.
About 22 percent of the work force in Hong Kong are organised in trade unions. This ICFTU report was prepared together with the ICFTU’s two affiliates in Hong Kong, the Hong Kong Confederation of Trade Unions (HKCTU) and the Hong Kong and Kowloon Trades Union Council (HKTUC). The only other trade union centre of significant size is the pro-Beijing Hong Kong Federation of Trade Unions (HKFTU).
I. Freedom of Association and the Right to Collective Bargaining
The Chinese government in Beijing notified the ILO in 1997 that both ILO Convention No. 87 (1948), the Freedom of Association and Protection of the Right to Organise Convention and ILO Convention No. 98 (1949), the Right to Organise and Collective Bargaining Convention would be applicable to the Hong Kong Special Administrative Region (HKSAR). Prior to 1997, these ILO conventions had been applicable to Hong Kong since 1975.
The Basic Law, promulgated by China in 1990 as the constitution of Hong Kong, provides for, among other things, freedom of association, of assembly and of demonstration; the right and freedom to form and join trade unions; and the right to strike. However, both before and after the hand-over, Hong Kong law has not adequately protected trade union rights. Trade unionists risk victimisation and dismissal for organising unions and carrying out trade union activities. Unions often keep membership lists secret to prevent victimisation. While the law protects against anti-union discrimination, the burden of proof lies with the worker. There is no provision in the law for reinstatement, but only for employers to be fined and workers compensated. The ILO Committee of Experts on the Application of Conventions and Recommendations has stated that "the reintegration and reinstatement in his post of a worker who has been dismissed or discriminated against for anti-union reasons constitute the most appropriate means of redressing acts of anti-union discrimination" and that the existing legislation is therefore inadequate under the terms of Article 1 of Convention No. 98.
There are no rights to and hence no institutional framework for union recognition and collective bargaining. Employers generally refuse to recognise unions or to implement agreements that have been negotiated (examples being the Hong Kong Telephone Co. Ltd, the Kowloon Motor Bus Co. Ltd and the Hong Kong International Terminal Group). This means that trade unions, to some extent, are forced to serve mainly as pressure groups and organisers or advisers of workers. Collective agreements cover fewer than one per cent of workers and are not legally binding. There is no collective bargaining in the public sector, although the previous administration consulted public servants over their pay and conditions.
The right to strike is not protected in the law. Under common law practice, employers dismiss striking employees for breaking their employment contracts. Employers can also claim damages from workers and use threats of disciplinary action, cuts in pay and demotions to deter strikes. Trade unionists on picket lines can be forced to disperse under the Public Order Ordinance. There are some restrictions on the right to strike for public servants and the chief executive of Hong Kong has the authority to suspend or dismiss public servants "under sufficient cause". This authority was used to intimidate postal workers from going on strike in 1990.
An example of the lack of protection for trade unionists was provided by the case of Courtney Chong, former Cathay Pacific Airlines employee and vice-president of the Flight Attendents’ Union, dismissed after a strike in 1993. The company had accused her of theft on fabricated charges and sacked her on the eve of union elections. This meant that she was unable to stand for election. The company finally offered her compensation just two weeks before the trial was due to begin on 6 July 1998, five years after Ms. Chong had filed a civil law suit for libel. On the pretext of lack of evidence, the Hong Kong government had not taken any legal proceeding against the company for committing anti-union discrimination. The latest case of unfair dismissal of a trade unionist took place in September 1998 when the chairman of the Hong Kong International Terminal Group Employees’ General Union was dismissed by the company.
"National" union centres are regarded as civil associations and have no protection in law. They are registered under the Societies Ordinance. The Societies Ordinance and the Public Order Ordinance have been amended since the hand-over to restrict freedom of association and freedom of assembly by introducing the concept of national security into both laws. The police were authorised to refuse permits for demonstrations if they believed national security would be threatened. The Societies Ordinance was amended to reintroduce the registration of political parties and to ban ties between political organisations and foreign political groups.
One of the new government’s first acts on taking control of Hong Kong on 1 July 1997 was to suspend "for review" until 31 October three ordinances protecting collective bargaining and other trade union rights
(1). This was despite the fact that the Chinese government had officially told the ILO that it would apply those ILO standards prevailing in Hong Kong prior to the hand-over and despite the guarantees in the Basic Law (the constitution of the Hong Kong Special Administrative Region) that provisions of ILO Conventions applied to Hong Kong before the hand-over will remain.Lee Cheuk-yan, the General Secretary of the HKCTU union centre, had introduced the ordinances in a private member’s bill to the Legislative Council (LegCo) in April 1997. The bill aimed to provide a satisfactory legal framework for unions after the hand-over to China and brought Hong Kong into compliance with ILO conventions. It was passed at the LegCo’s last sitting under British rule in June 1997. The business establishment protested strongly when the laws were adopted that they threatened Hong Kong’s stability and prosperity. The Chairman of the Federation of Industries, Henry Tang Ying-yen, said the laws were "dangerous" and would hurt Hong Kong’s competitiveness. A business group representing 13 chambers of commerce issued alarmist statements, such as that 80 per cent of overseas investors would pull out if the laws were allowed to stand.
The Secretary for Education and Manpower stated that the laws would "deal a direct blow to Hong Kong’s economy and its attractiveness to foreign investment." The Chief Executive designate, Tung Chee-hwa, pledged to rectify the "undesirable social and economic consequences" of the laws.The Provisional Legislative Council (PLC) repealed the most important provisions of the new laws on 29 October 1997. In general, the labour law was returned to what it had been in the years before the hand-over. The PLC repealed the rights to recognition for collective bargaining or consultation rights for registered unions and the right to reinstatement for workers fired for union activities. A ban on the use of union funds for political purposes was reinstated, as was a
ban on candidates for election to executive positions in trade union centres coming from outside the enterprise or sector concerned.Certain improvements with regard to freedom of association and the right to collective bargaining under the new legislation survived the PLC’s review of 29 October, in particular: the right of unions to federate and confederate across sectors of industry; international affiliation without prior government approval (although the Registrar of Trade Unions must be notified and a majority vote must be obtained in a secret ballot); the lowering of the age limit of union officials from 21 to 18, and lifting of the ban on persons from outside the enterprise or sector standing for election to the executive committees of federations (although not national centres).
At its November 1998 session, the ILO Committee on Freedom of Association discussed the 29 October 1997 labour legislation. The Committee upheld the criticisms of the Hong Kong trade unions. It stated that the legislation on protection against anti-union discrimination needed to be reviewed and strengthened to respect Convention No. 98 and that, in particular, the legislation needed to provide for reinstatement of workers fired for union activities without the prior consent of the employer, since such consent was difficult to envisage. It regretted the repeal of the collective bargaining ordinance and called for the promotion of collective bargaining through objective rules for the designation of the most representative unions for collective bargaining purposes. Finally the Committee called on the Hong Kong government to repeal the sections of the new law restricting union office to persons actually engaged in the sector concerned; those sections imposing restrictions on the use of union funds; and the sections banning unions from engaging in political activities. In response to the Committee’s findings, HKCTU Chairman Lau Chin Shek stated, "We are prepared to work closely with the government in ensuring that the CFA’s recommendations will be implemented and to restore the tarnished image of the Hong Kong SAR government in the international community."
The HKCTU has in 1998 renewed its call for collective bargaining rights with added urgency in response to the Asian financial and economic crisis, with disputes arising over several companies’ rejection of compensation payments for the mounting number of laid-off workers - a notable example being the German-owned garment maker Triumph International Overseas Limited - as well as over wage cuts, such as at HK Telecom. However, under the Basic Law, a private member’s bill is much more difficult to introduce as the Chief Executive’s approval is required if it "is related to government policy".
In May 1998, more than 100 police were deployed to disperse striking workers picketing the construction site of the new airport after the management had refused to negotiate with the union. On 17 June 1998, a member of the HKCTU, Wong Ying-yu was acquitted of the charge of "creating noise nuisance" under the Public Order Ordinance during a picket line action at the Regal Hotel in March. The police had prosecuted him for using a megaphone while picketing outside the hotel with laid-off workers.
Another HKCTU organiser, Yip Kwok-yin, was sent two warning letters by the police after holding illegal assemblies, an offence under the Public Order Ordinance. He had organised two rallies and pickets of around 100 workers at the China Overseas Holding Company, a China-owned construction company, to demand that workers should be paid their wages.
In August 1998, the HKCTU said that union organisers were facing increasing obstacles from the authorities in applications for permits to put up union publicity materials, such as bill boards. This is particularly significant because restrictions on trade union rights make street publicity an important organising tool in Hong Kong.
The lack of protection of trade union rights has gravely exacerbated the extremely unequal distribution of income and wealth in Hong Kong. According to a senior economic advisor to the Hong Kong SAR government, over 10% of the population, 700,000 people, lived below the poverty line in 1997, up from 8% in 1971, despite the continuous high economic growth recorded during the same period. The serious difficulties for the exercise of trade union rights in Hong Kong will further redistribute wealth in Hong Kong from the poor to the already enormously wealthy rich and are likely to sharpen social tensions for the foreseeable future.
A further consequence of the absence of strong trade union rights, which would enable trade unions to insist upon the full enforcement of workers’ rights, has been a record of industrial safety described by the last Governor of Hong Kong, Christopher Patten, as "appalling". 62,800 cases of industrial injuries and 43.3 cases of industrial accidents were recorded by the government in 1997, a rise of 7.6% from 1996.
The rising poverty rate is also due in part to the massive relocation of production to China, where labour costs are lower. The cumulative value of Hong Kong investment in China stands at over US $100 billion. Women have been amongst the hardest-hit as production lines have been shut down in Hong Kong and moved to the special economic zones in China, with the predominantly female employment in the clothing industry falling from 300,000 in the mid-1980s to just 80,000 in 1997.
Trade union rights were subject to grave and widespread violations in Hong Kong under the former British colonial administration and the situation has remained equally serious and in some ways has worsened in the time since the hand-over. Changes to the labour law agreed in June 1997, which would have brought Hong Kong’s legislation on freedom of association into line with the relevant core labour standards conventions, were quickly repealed by the new administration and Hong Kong’s labour law is once again in significant contravention of the ILO conventions concerned.
Trade unions have thus been severely hampered in the current crisis in trying to represent workers in Hong Kong in the face of action by companies which are cutting wages and rejecting compensation payments for retrenched workers. This has had an impact on the price of Hong Kong’s exports and so enhanced Hong Kong’s competitiveness at the expense of countries where basic union rights are respected. This continues a pattern in which Hong Kong’s development, and its trade and investment relations with other countries, have been based upon extensive freedoms for business and restrictions on the freedom of workers.
II. Discrimination and Equal Remuneration
The core ILO Conventions on discrimination, No. 100 (1951), Equal Remuneration and ILO Convention No. 111 (1958), Discrimination (Employment and Occupation) were not included by the Beijing government in 1997 among the ILO conventions which would be applicable by the Special Administrative Region of Hong Kong, although China itself had ratified Convention No. 100 in 1990.
Women in Hong Kong constitute 36 % of the work force, as compared to 34% in 1980. Women have traditionally faced significant discrimination in employment, salary, welfare, inheritance and promotion. The women who have lost employment in the textiles sector as production has moved to China (see Section I above) have been particularly badly hit by unemployment, due partly to their low educational qualifications stemming from discrimination. Many can trace their lack of education to having been child labourers in the 1960s and early 1970s, before nine-year compulsory education was implemented. Many of those who have succeeded in finding jobs have become casual, part-time and short-term contract workers.
After the passage of laws in 1995 banning discrimination on the basis of sex and disability, including the Sex Discrimination Ordinance, an Equal Opportunities Commission was established. Trade unions and women's groups have criticised the new Commission for passivity in combating discrimination and for emphasising conciliation instead of acting as a watchdog or pursuing court cases. Furthermore, the Sex Discrimination Ordinance does not provide for reinstatement and sets a relatively low ceiling of 150,000 Hong Kong dollars (US$ 19,300) for the amount of damages recoverable in litigation.
An October 1997 survey found that although most employers no longer specify sex in recruitment advertising, they often reject applicants based on job stereotypes.
Over 164,000 Filipino, Thai, Indonesian and other foreign national domestic workers face deportation if dismissed by their employers and are thus extremely vulnerable to abuse. Complaints of maltreatment of domestic helpers at the hands of employers, immigration officials and other are regularly reported. There have been extensive reports of racial and sex discrimination against migrant workers, particularly Filipino women.
Discrimination against the physically and mentally disabled persists in employment, education, and the provision of some state services. The 1995 Anti-discrimination Law provided for improved building access and sanctions against those who discriminate. The government has begun an integrated work extension programme and expanded vocational training for the disabled.
There has traditionally been widespread discrimination against women in Hong Kong and recent legislation on discrimination has some key deficiencies. Migrant workers face extensive discrimination.
III. Child Labour
ILO Convention No. 138 (1973), the Minimum Age Convention, was not included by the Beijing government in 1997 as one of the ILO conventions which would be applicable by the Special Administrative Region of Hong Kong.
Hong Kong provides free, compulsory education for all children between the ages of 6 and 15. The Employment of Children Regulations prohibit employment of children under the age of 15 in any industrial establishment. However, children 13 and 14 years of age may be employed in certain non-industrial establishments, subject to conditions aimed at ensuring a minimum of 9 years' education and protecting their safety, health, and welfare. But such employment is rare: in 1996 the Labour Department of Hong Kong conducted 33,892 inspections of non-industrial workplaces and discovered only 11 cases of child employment.
Although the legal provisions on child labour in Hong Kong allow for employment of children as young as 13 in non-industrial establishments, child labour would not appear to be widespread.
IV. Forced Labour
The Chinese government in Beijing notified the ILO in 1997 that both ILO Convention No. 29 (1930), the Forced Labour Convention and ILO Convention No. 105 (1957), the Abolition of Forced Labour Convention would be applicable to the Special Administrative Region of Hong Kong.
The use of forced labour is prohibited in the Hong Kong Bill of Rights Ordinance and there are no reports of forced labour in Hong Kong.
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CONCLUSIONS
Hong Kong has been able to use its inadequate legislative protection of basic trade union rights as a tool of export competitiveness, which has been particularly evident since the start of the Asian economic and financial crisis. Such behaviour undermines respect for workers’ rights in its export competitors, creates fertile ground for protectionists and inhibits the spreading of the potential benefits of open trade. It is imperative that the government of Hong Kong table urgent legislation to establish full respect for core labour standards in accordance with the ILO Conventions concerned. As stated by HKCTU Chairman Mr. Lau Chin Shek on 19 November 1998, "the respect and implementation of core labour standards have been one of the key agenda items for today‘s business community, including the World Trade Organisation and various multilateral trade agreements. If Hong Kong wants to maintain its status as a competent and respectable player in the world’s economy, it should bring itself in line with international standards."
As a first step, the provisions contained in the Employee’s Right to Representation, Consultation and Collective Bargaining Ordinance, the Employment (Amendment) Ordinance and the Trade Union (Amendment) Ordinance which were repealed by the new administration in October 1997 and which had briefly brought Hong Kong’s legislation into line with international labour standards should be reinstated. This would bring Hong Kong into compliance with the provisions of Conventions 87 and 98, as recommended by the ILO Committee on Freedom of Association in November 1998. It would have specific effect on the right to recognition for collective bargaining or consultation rights for registered unions and the right to reinstatement for workers fired for union activities..
Action is needed by the government of Hong Kong to address the problems relating to protection of the right to strike, with regard specifically to no-strike clauses in employment contracts; the ability of employers to claim damages from striking workers; the use of the Public Order Ordinance to disperse trade unionists on picket lines; the restrictions on the right to strike for public servants; and the authority of the Chief Executive to suspend or dismiss public servants "under sufficient cause". All these areas require legislative improvements.
Amendments to the Societies Ordinance and the Public Order Ordinance since the hand-over to restrict freedom of association and freedom of assembly by authorising the police to refuse permits for demonstrations must be repealed in order to respect these basic workers’ human rights.
Hong Kong should apply the core labour standards on discrimination as contained in ILO Conventions 100 and 111. The 1995 laws banning discrimination on the basis of sex or disability need to be strengthened to provide for reinstatement and by removing the ceiling on possible damages claims against employers. The Equal Opportunities Commission should adopt a much more active approach to fighting discrimination and should take legal action against those violating the 1995 laws. Furthermore, the prevalence of poor education among unemployed women workers indicates the urgent need for improved adult education, training and retraining programmes targeted at women.
The government should undertake positive action measures to improve the situation of migrant workers, to end racial and sex discrimination against migrant workers and to provide stronger safeguards against arbitrary deportation.
Hong Kong should apply the core labour standard on child labour, ILO Convention No. 138, requiring legislative changes to raise the minimum age for employment to 15.
In line with the commitments accepted by Hong Kong at the Singapore WTO Ministerial Meeting and its obligations as a member of the ILO, the government of Hong Kong should therefore provide reports to the WTO and the ILO on its legislative changes and implementation programmes with regard to the above areas.
The WTO should draw to the attention of the authorities of Hong Kong the commitments they undertook to observe core labour standards at the Singapore and Geneva WTO Ministerial Conferences. The WTO should request the ILO to intensify its work with the government of Hong Kong in these areas and provide a report to the WTO General Council on the occasion of the next trade policy review.
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(1) The Employee’s Right to Representation, Consultation and Collective Bargaining Ordinance, the Employment (Amendment) Ordinance and the Trade Union (Amendment) Ordinance.References
Byrnes, Andrew, "Equality and Non-Discrimination", published in Human Rights in Hong Kong, ed. Wacks, Raymond, 1992.
China Labour Bulletin, various editions.
Education International (EI), Barometer on Human and Trade Union Rights in the Education Sector, 1998.
Hong Kong Confederation of Trade Unions (HKCTU), Trade Union Rights amid Economic Turmoil, report to ICFTU Asian and Pacific Regional Organisation (ICFTU/APRO) Executive Board, October 1998.
HKCTU, Hong Kong Women Workers and 1997, report by HKCTU Chief Executive Elisabeth Tang, 1997.
HKCTU, Turning Point (quarterly bulletin), various editions.
ICFTU, Annual Survey of Violations of Trade Union Rights, 1996, 1997 and 1998 editions.
ICFTU and ICFTU/APRO, Hong Kong: Accord for a Better Tomorrow, 1996.
ICFTU, HKCTU, Hong Kong and Kowloon Trades Union Council (HKCTU) and ICFTU Hong Kong Liaison Office, HK Labour Press (bi-weekly news bulletin), various editions
ICFTU/APRO, ICFTU/APRO Labour Flash, various editions.
International Labour Organisation (ILO), Report of the Committee on Freedom of Association, November 1998.
ILO, Reports of the Committee of Experts on the Application of Conventions and Recommendations, editions from 1993 to 1998.
International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF), Hong Kong: IUF Mission Report, December 1997.Labour Department of Hong Kong, A Concise Guide to the Employment Ordinance, April 1998.
US Department of State, Report on Human Rights Practices for 1997, 1998.
World Bank, World Development Report, 1998.
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