2011 Annual Survey of violations of trade union rights - Hong Kong SAR (China)

Population: 6,900,000
Capital: –
ILO Core Conventions Ratified:

Workers and unions continue to have little opportunity to defend their rights in practice, and collective bargaining rights are regularly ignored. Overall, the laws pertaining to trade union rights are lacking.

TRADE UNION RIGHTS IN LAW

Although the Basic Law, which is essentially 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. While the law protects workers against dismissal for trade union activities, it does not cover other forms of anti-union discrimination. A trade union may not use its funds as it wishes, as particularly the use of funds for political ends or for transfer to foreign trade union organisations is restricted in law. Furthermore, only those currently or previously employed in the trade, industry or occupation of the union concerned are permitted to become union officers.

The right to strike is limited, as the Public Order Ordinance authorises the use of force to break up strike pickets and demonstrations, and employers can seek an injunction order to suppress workers' protests. There is also little protection for striking workers, as the law only ensures that, were a worker to be dismissed for participating in a strike, s/he would have the right to sue the employer for compensation. There is no legal entitlement to reinstatement.

TRADE UNION RIGHTS IN PRACTICE AND VIOLATIONS IN 2010

Background: In July a minimum wage bill was finally passed but disappointed most unionists in its final shape and also excluded migrant domestic workers. The economic crisis has increased lay-offs and pay cuts for many workers, and 2010 saw several high profile strikes. There was a marked increase in the number of reported wage violations in 2010 over 2009 and a refusal to consider legislating on collective bargaining. Wages continue to be determined by the employers and their associations.

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. Instances of dismissal or harassment for union activity are reported each year.

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 generally strong enough to force management to engage in collective bargaining. Thus, less than 1% of workers are covered by collective agreements, and the collective agreements that do exist are not legally binding. Without legal protection to guarantee these rights, workers are also subject to arbitrary and unilateral actions by employers and 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. Employers often attempt to take advantage of the disparity and political divisions among staff unions including the divide between the pro-democratic HKCTU and the pro-Beijing Federation of Trade Unions.

Consultation rather than bargaining: 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 same attitude is persistently held in the private sector, where companies such as Cathay Pacific substitute "consultation" for collective bargaining while unilaterally proposing and determining major labour policies. A strike lodged by the Flight Attendants' Union was avoided in the last minute in April 2010 after the management scrapped the new roster policy that was introduced unilaterally in March.

Hong Kong passes minimum wage law – excludes migrant domestic workers: In July Hong Kong passed a minimum wage bill after many years of campaigning by unions and other groups and despite resistance from businesses and the government. The law will take effect in 2011. However, pro-democracy legislators, whose numerous attempts to have the bill amended were blocked by their pro-government counterparts, said there were many loopholes in the new law including the fact that the legal framework for setting the minimum wage will be largely controlled by the government.

Unions had pushed for the minimum wage to be fixed at HKD 33 (USD 4.2) an hour to cover basic living expenses; however, the final amount set in November was only HKD 28. In 2009 the UN Development Programme estimated Hong Kong's income gap to be the world's biggest among wealthy economies.

Migrant domestic workers will also be excluded from the minimum wage and continue to have their monthly wage set separately by the government without reference to maximum working hours.

Bus unions in pay rise dispute – bonuses to non-strikers: Bus drivers employed by various companies went on strike over pay increases in August. Bus drivers' unions under the independent Hong Kong Confederation of Trade Unions (HKCTU) threatened to strike if their demands of a 2.2% wage increase were not met. Management of the New World First Bus and its subsidiary Citybus refused to meet the unions' demand after securing the consent of the drivers in the pro-Beijing Hong Kong Federation of Trade Unions (HKFTU) to the company's offer of a 1.8% increase. Kowloon Motor Bus and Long Win refused to negotiate with the trade unions despite the threat of work-to-rule.

After two days, drivers employed by New World First Bus suspended their strike but did not rule out future industrial actions. Another three unions from Citybus, Kowloon Motor Bus and Long Win drivers also announced that they will suspend their industrial actions. Despite this around 100 drivers and maintenance staff of New World First Bus refused to return to work and marched to the transport secretary offices calling for the right to collective bargaining. Police warned the bus drivers that they were liable to prosecution because they had not applied for a permit.

A union spokesperson stated that the companies had coerced drivers on days off to come to work by paying bonuses of HKD 300 to those who helped to break the strike.

Nepalese workers win concessions after lock-out of strikers: After unfulfilled promises to improve working conditions and wages, some 70 ethnic Nepalese construction workers went on a two-day strike on 11 -12 November. During negotiations management refused to meet any of the workers' demands.

The workers at the Maeda-CREC-SELI Joint Venture were paid extremely low daily rates with none of the usual additional allowances which other workers received. They also were not given lunch or tea breaks. In addition, only one container was provided for workers to change and rest, contrary to Hong Kong hygiene standards.

Frustrated, the workers contacted the Nepalese Construction Workers Union and the Construction Site General Workers Union for assistance. Union officials went to the work-site, and as a result, on 13 November management locked the doors refusing entry to all of the Nepalese workers. The workers remained outside, but in response the management called the police and the Labour Department. On 15 November the workers went to work but were again refused entry. They then held a demonstration coordinated by the unions, after which Department of Labour officers came to arbitrate between the management and the workers. By 5:00 p.m. an agreement was reached with the company agreeing to provide one hour overtime pay for every eight hours of work, 20 minute breaks for all workers, back-wages for the two days the workers went on strike, and the reinstatement of all workers who chose to return following the agreement. Despite the wage not being increased, this was the first major victory for the Nepalese Construction union since its inception in 2007. The long established Nepalese community in Hong Kong often faces discrimination and low wages.