Opening Speech of the Government of the Hong Kong Special Administrative Region of the People's Republic of China on the Application of International Labour Convention No. 87 at the virtual meeting of the Committee on the Application of Standards held during the 109th Session of the International Labour Conference
(By Mr. SUN Yuk Han, Chris, Commissioner for Labour, Labour Department, HKSAR, P.R.China)
(June 11, 2021)
Madam Chairperson, distinguished members,
The Government of the Hong Kong Special Administrative Region of the People's Republic of China would like to thank the Committee on the Application of Standards for the opportunity here to address the Committee of Experts' Observations in 2019 and 2020 on the Hong Kong SAR's application of Convention No. 87.
Application of the Convention
2. Convention No. 87 has been applied to Hong Kong with modifications in respect of Articles 3, 5 and 6 since 1963. All along, the Hong Kong SAR Government has been fully committed to taking measures to protect employees' rights to form and join trade unions, and to participate in trade union activities.
Freedom of Association and Right to Organise
3. The Basic Law of the Hong Kong SAR of the People's Republic of China ("Basic Law") protects the right and freedom of association, and the right and freedom of Hong Kong residents to form and join trade unions. The Hong Kong Bill of Rights Ordinance also provides for such rights. However, as in other jurisdictions, these rights are not absolute and are subject to restrictions provided by law 2 for the protection of national security, public order, etc. Convention No. 87 clearly stipulates that one shall respect the law of the land in exercising the rights provided for in this Convention. The Committee of Experts also pointed out in its Observations that workers' and employers' organisations should have the right to organise their activities in full freedom while respecting the law of the land. The authorities should refrain from any interference which would restrict freedom of association and assembly or impede the lawful exercise thereof, provided that the exercise of these rights does not cause a serious and imminent threat to public order.
4. The Hong Kong SAR Government has been committed to promoting sound trade union administration and trade unionism. Trade union members and officers enjoy a range of rights under the Hong Kong SAR's law on trade unions, including the immunity from civil suits for certain acts done in relation to trade disputes. Although the purposes of a trade union may be involved in restraint of trade, trade union members are not liable to criminal prosecution for conspiracy.
5. Over the past decade, the number of trade unions registered in the Hong Kong SAR increased steadily and recorded a sharp rise in 2020. Specifically, the number of registered employee unions increased more than half from 866 at end-2019 to 1 355 at end-2020. These figures demonstrate that the right and freedom of association, and the right and freedom to form and join lawful trade unions are fully enjoyed by Hong Kong residents. Moreover, the visits to trade unions conducted by the Labour Department have not found any acts of interference of employee and employer organisations by each other in their establishment, functioning or administration. No complaint from trade unions about interference was received.
6. Fully upholding the protection of the right of our workforce to 3 join trade unions, we have put in place a series of safeguards to protect employees against anti-union discrimination under Hong Kong's labour law. Our law stipulates that an employer shall not prevent or deter an employee from exercising his rights to be or to become a member or an officer of a trade union, to take part in their union activities at any appropriate time, to associate with other persons to form a trade union, etc. Furthermore, the law does not allow an employer to dismiss, penalise or discriminate against an employee by reason of his exercising the above rights. Otherwise, offenders including employers or persons acting on their behalf may incur criminal sanction.
7. As mentioned in the Observations of the Committee of Experts, the International Trade Union Confederation ("ITUC") in September 2016 alleged that a group of coach drivers were all dismissed by the employer before a strike. The Hong Kong SAR Government carried out prompt investigation into the alleged anti-union discrimination. While there was insufficient evidence to substantiate an anti-union discriminatory offence, the Hong Kong SAR Government took out prosecution against their employer on late payment of wages and conviction was secured.
8. The Hong Kong SAR Government does not, and will never, tolerate abuses of the law by employers, and will promptly take out impartial and in-depth investigation into complaints on suspected antiunion discriminatory acts. Subject to sufficiency of evidence, prosecution will be taken out against employers and/or persons acting on employers' behalf.
9. Hong Kong is a society respecting and upholding the rule of law, any arrest and prosecution is directed against criminal acts according to the law and has nothing to do with the political stance, social background or trade union membership of the persons concerned. 4 The Police's arrest actions must be based on facts and evidence, and conducted in strict accordance with the law. The Department of Justice oversees criminal prosecutions, free from any interference. There is an independent judiciary with the power of final adjudication in Hong Kong. Everyone will receive a fair and just trial. It is a hypocritical argument of politics openly overriding legal justice for anyone to advocate privilege for certain groups of people, such as labour representatives, and contend that they can violate the law without facing legal sanctions.
10. The court, which enjoys independent judicial power, has, in accordance with the law, ruled and convicted individual unionists in contravention of criminal offences after trial. The fair and transparent legal proceedings and court rulings prove that the prosecution actions were fully justified in fact and in law. In these criminal cases, prosecutions of the persons concerned were made because of their criminal offences and had completely nothing to do with their trade union membership. As the judicial proceedings of the other related cases are still on-going, it is inappropriate for the Hong Kong SAR Government to comment further. As regards the alleged arrest of a trade unionist (Mr YU Chi-hang) by the Hong Kong Police in December 2015 which ITUC mentioned, we are unable t