2012 Annual Survey of Violations of Trade Union Rights - Hong Kong SAR (China)

Population: 7,050,000
Capital: –

ILO Core Conventions Ratified:

Reported Violations – 2012

Murders: none reported
Attempted Murders: none reported
Threats: none reported
Injuries: none reported
Arrests: none reported
Imprisonments: none reported
Dismissals: none reported

Documented violations – actual number of cases may be higher

Introduction

Workers and unions continue to have little opportunity to defend their rights in practice, and collective bargaining rights are regularly ignored. The law does little to protection trade union rights and if anything inhibits the development of trade unions and their activities.

Background

The Minimum Wage Law was finally implemented in May 2011 but it disappointed most unionists in its final shape and also excluded migrant domestic workers. Migrant domestic workers continue to have their monthly wage set separately by the government without reference to maximum working hours. Their monthly wage rose for the first time since 1998, by 4.5%, from 1 June. Many workers suffered from real wage loss due to high inflation rates and at the start of 2011, the number of people living in poverty in Hong Kong was 1.26 million, or about 18.1% of the population. Despite a robust economy, more than a quarter of employees faced pay cuts of up to 10% during the year.

Under Hong Kong's Basic Law, non-citizens are entitled to permanent residency if they have ordinarily resided in the city for a continuous seven years; however Hong Kong's 292,000 foreign domestic workers are specifically excluded from these provisions under immigration laws. A Filipino domestic helper won her legal bid for permanent residency in Hong Kong in September 2011. She had launched her case in 2010 after previous attempts for permanent residency were denied.

Trade union rights in law

Legal restrictions on trade unions' activities in the Trade Union Ordinance have not been revised despite repeated criticisms by unions in Hong Kong and the ITUC. These include provisions in the Trade Union Ordinance that restrict trade unions from using funds for political purposes, from receiving financial contributions from foreign organisations without obtaining permission from the Chief Executive of Hong Kong and from appointing and electing candidates from outside the union's sector or occupation as union officers. These provisions were enacted in 1975 by the ex-colonial government against the background of the 1967 riots. The obsolete provisions are inhibiting, rather than promoting healthy, sustainable development of trade unions and trade union activities 36 years afterwards – as Hong Kong has become one of the most globalised economies and metropolitan cities in the world.

There is no institutional framework for the recognition of unions and collective bargaining.

Although the right to strike is permitted by law, it is limited. The Public Order Ordinance authorizes the use of force to break up strike pickets and demonstrations and employers can seek an injunction 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 but not reinstatement. This is one of the major reasons inhibiting members of the trade unions in participating in industrial actions and instead succumbing to employers' coercion with the objective of breaking the strike.

Link to additional detailed information regarding the legislation on the ITUC website here

In practice

Escalating use of force by police:

The use of force by the Hong Kong Police has escalated over the last two years during assemblies and demonstrations, particularly protests and demonstrations staged outside the Government Office and the Liaison Office of the People's Republic of China (PRC) in Hong Kong. The use of physical force, arrests and elective prosecutions show a heightened level of intolerance towards individuals and organisations exercising the rights of expression, association and assembly.

The Hong Kong Journalists Association and the Hong Kong Press Photographers Association protested against the suppression of press freedom and freedom of expression by the Hong Kong authorities during the visit of te Vice Premier of the PRC, Li Keqiang, to Hong Kong on 20 August 2011. Earlier in 2011, the Hong Kong Journalists' Association protested after the police used disproportionate force against members of the news media who were reporting on the public rally against the government on 1 July 2011, the 14th anniversary of the handover of Hong Kong to China.

No recognition of collective bargaining rights:

There is no institutional framework for the recognition of unions and collective bargaining. Employers in general continue to refuse to recognise unions as well as refusing to implement agreements that have been negotiated. Although roughly 23% of the workforce is unionised, unions are unable to force management to engage in collective bargaining. Less than 1% of workers are covered by collective agreements, and those that exist are not legally binding. Without legal protection to guarantee these rights, workers are subject to arbitrary and unilateral actions by employers and, as a consequence, are denied job and income security.

The Hong Kong Confederation of Trade Unions (HKCTU) is consistently excluded from the Labour Advisory Board (LAB), the tripartite consultative body established by the government, which does however include pro-government union federations. This exclusion means it is denied the right to participate in tripartite negotiations on labour laws and policy and is 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-democracy HKCTU and the pro-Beijing Hong Kong Federation of Trade Unions (HKFTU).

Consultation rather than bargaining:

The Hong Kong SAR government has lauded tripartite committees at the industry level as useful tools for promoting bipartite voluntary negotiation. The Labour Department has set up nine tripartite committees covering catering, construction, property management, retail, hotel and tourism, logistics, printing and theatre as well as the cement and concrete industry. These committees are consultative only in nature, loose in organisation, and do not assume any legally binding responsibility to establish or promote collective bargaining mechanisms at corporate or industrial level.

The "collective agreements" that the government claims were signed in the food processing and security services industry were not known by workers in the two sectors. Nor are the industrial affiliates of the Hong Kong Confederation of Trade Unions (HKCTU)in these sectors aware of the existence of these agreements. As the government continues to resist collective bargaining legislation, there is no procedure and scope to define negotiations. The result is that talks in these tripartite and industrial committees tend to be on issues un-related to labour standards, with no accountability to workers in the industries.

Weak protection against anti-union discrimination: Cases of dismissal or harassment for trade union activity are reported each year. However, due to the difficulties establishing anti-discrimination, litigation against employers for this offence remains a weak tool for victimised workers. The Hong Kong Confederation of Trade Unions (HKCTU) has been critical of the lack of effective protection against anti-union discrimination in Hong Kong, evidenced by the low number of complaints filed by the Labour Department and the even lower number of successful cases against employers – not more than two since 1997.

Exemption of public servants from collective bargaining: The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has repeatedly urged the government not to exclude workers in this sector as a whole from collective bargaining. Nevertheless, the Hong Kong government insists that there is no need for collective bargaining in the public sector, on the grounds that well-established and effective machinery for consultation concerning the conditions and terms of employment of civil servants is in place. However, civil service reforms since 2002, involving transfers, reductions in wages and benefits, retrenchment and contracting-out to the private sector have demonstrated very clearly that the government has been free to act unilaterally without consulting the affected civil servants. Labour relations in the public sector have thus been very strained.

Violations

Exclusions and loopholes in the new minimum wage law:

Hong Kong's minimum wage bill, which was passed by the legislature in 2010, came into effect on 1 May 2011. The setting of the minimum wage rate at HKD28 per hour was an administration-dominated exercise as no amendment was allowed when the Minimum Wage Ordinance went to the Legislative Council for approval – contrary to normal legislative practice in Hong Kong. There is no regulation or guidelines on whether meal breaks and rest days should be paid. The issue is left to consultation between employers and employees. Hence, many employers, in order to reduce labour costs, have amended the employment contract to state the exclusion of paid meal breaks and rest days. Unilateral amendment of employment contracts to offset the salary rise brought by the new law is particularly rampant in the food and catering, cleaning, security guard, tourist and elderly care sector. Many workers were forced to accept the amendment or lose their jobs. Within a week of the new law taking effect, 14 employers faced possible prosecution after labour inspectors found they may have breached the minimum wage law.

The wage level of migrant domestic workers in Hong Kong is set by government decree. They have no mechanism to collectively bargain with their employers or the employers' association. In anticipation of the new minimum wage law, the migrant workers' unions called on the government to include migrant workers under the new law's protection. However, they were totally excluded in the minimum wage bill legislation process, in the Labour Advisory Council, and in the Minimum Wage Bill Committee.

Dockers union bypassed: In May, the Hong Kong Dockers Union requested a pay rise after years of decreasing wage levels. There was no response from the employer who instead bypassed the union and directly discussed the matter with the employees. The union began to organise workers and protested the move. The employers finally agreed to a 4% rise after a threat of strike action from the union.

Collective bargaining denied in several companies:

In the absence of legislation – and thereby an objective procedure of determining the representative status of trade unions for collective bargaining purposes – workers and trade unions are often forced to take industrial action to press for their demands. Employers refuse to recognise the union and to bargain without legal penalty. In none of the following industrial actions reported by the Hong Kong Confederation of Trade Unions (HKCTU) has the employer consented to negotiate with the trade union as the collective bargaining partner in the interest of restoring industrial peace.

In June, Swire Coca Cola HK Limited refused to sign a bonus scheme agreement for new permanent staff members with Swire Beverages (Hong Kong) Employees General Union even though the union had submitted a written request.

Vitasoy Employees Union submitted a written request for a regular meeting and union recognition in September 2010. The management rejected the request. The union again sent a letter to the chairmen of Vitasoy International Holding Limited in June 2011, and was rejected again.

In July 2011, Campus Facilities Management Company Limited Workers Union submitted a written request for a salary negotiation. The management refused. The union had no choice but to take industrial action. In the end, the company offered only a slight pay raise to workers.

Most of the main operators of Hong Kong container terminals outsource the work to sub-contractors. Workers are paid low wages and their working hours are long. The Union of Hong Kong Dockers submitted a written request for salary negotiations in both 2010 and 2011. The operators, including Hong Kong International Terminals Limited, DP World Hong Kong, Asian Container Terminals Limited and Modern Terminals Limited, refused to negotiate with the union.

Mainland Chinese charged recruitment fees and passports withheld: Unionists suspect that many of Hong Kong's private residential care homes for the elderly may have been illegally underpaying care assistants from the Chinese mainland and withholding their travel documents. In July, the Community Care and Nursing Home Workers General Union protested to the Hong Tak Institution for Old Age, accusing the institution of extracting five months' salary from six female care assistants as a fee – charged with no prior agreement – for obtaining the job, of not paying overtime, and of withholding workers' travel documents. All six care assistants at the facility came from Guangxi province through the Labour Department's Supplementary Labour Scheme, the purpose of which is "to alleviate manpower shortages". The Labour Department reportedly did not investigate the case despite the union's complaints in 2010.

City University Staff Association harassed: In July, the City University Staff Association (CUSA) was informed by management that the union's office which had been in use for six years was to be taken back. No arrangement was made to provide new space. The university simultaneously stopped collecting trade union dues from the wage slips of union members. Management explained its action on the grounds that the union had failed to hold its annual general meeting. Two protests were held by CUSA. Some union members from the teaching staff put up flyers on their office doors in support of the union. The security guards took photographs to identify the teaching staff involved in the action. CUSA protested and asked the management to erase the images to protect its members. This request was refused by management.

Striking lift workers replaced: In September, around 70 elevator technicians from Thyssen Krupp Elevators went on strike over low wages and working hours as many were forced to work long hours to achieve adequate pay. Some of them were required to work 33 consecutive hours a day. About 80% of the workforce joined the strike. During the strike, the company recruited temporary workers to replace the strikers. This was criticised for putting the safety of the elevator users at risk for the purpose of breaking up the strike. After a three day strike, management agreed to increase the basic salary.