Chapter 9 Worker's Rights: Right to Organize, Right to Strike and Right of Collective
Article 23(4) of the Universal Declaration of Human Rights states that:"Everyone has the right to form and to join trade unions for the protection of his interests." It is also stipulated in the provisions of the two international covenants on human rights and the International Labour Conventions that everyone has the right to organise, the right to strike and the right of collective bargaining which are based on the freedom of association andthe freedom of expression. Workers can exercise these rights to safeguard their benefits, such as improving their working conditions and quality of living. All these are important elements contributing to the advancement of social justice and economic and cultural development.
I. Right to organize trade unions
According to Article 8 of the International Covenant on Economic, Social and Cultural Rights and Article 87 of the International Labour Conventions,everyone has the right to form trade unions and join the trade union of his/her choice. The trade union has the right to formulate its constitutionand rules, elects its representatives and to function freely. The government should not arbitrarily stop its activities. Moreover, trade unions have the right to establish national federations or confederations and the right to form or join international trade union organizations.
The British government ratified the International Labour Conventions in1949. However, it was not until 1979, that the conventions were partially enforced in Hong Kong. Although it seems that there are many pieces of legislationin Hong Kong that protect the right to organize, some provisions of these legislation violate the right.
The Hong Kong government imposed a system of compulsory registration under the Trade Union Ordinance, Chapter 332 of the Hong Kong Laws. Under section5.5 of the said Ordinance, the officers of any trade union which fails to meet the legal requirement, are liable to a fine of $1,000 and imprisonment for six months.
The legal authority of the Registrar to monitor the administration of tradeunions cannot be justified. The Registrar has the power to monitor trade union activities through the supervision of union rule books, accounts and related documents. Trade unions are obliged by law to report to the Registrar where there are changes to the rule book, or the offices and branches operated by the trade unions. This law seriously restricts the freedom of workers to organize trade unions.
Moreover, there is a legal restriction on workers from different occupations and industries to form unions of common interest. In section 17.1 of theTrade Union Ordinance, the membership of a trade union is confined to those who are "ordinarily resident in Hong Kong and engaged or employed ina trade, industry or occupation with which the trade union is directly concerned".This further frustrates the development of employee unions in Hong Kong while the development of industrial unions is weak. Cross-occupation unions are necessary to promote the rights and general welfare of workers.
The phrase "directly concerned" is applied at the discretion ofthe Registrar of Trade Unions, who rarely gives permission to members from separate trades or industries to form trade unions . For this reason some trade unionists prefer to register their unions under the Societies Ordinance rather than the Societies Ordinance which does not offer the protections for these unions as stipulated by the Trade Union Ordinance.
There are legislative constraints on the eligibility on the election oftrade union officials. In section 17 of the Trade Union Ordinance, eligibility restrictions on official elections has been imposed on those with previous criminal records and are under the age of 21.
According to the law, the consent of the public authority is required for local trade unions to be affiliated with any international organizations.Only registered trade unions engaged in the same occupation or industry can form federations of trade unions.
The regulation of amalgamation is strict. In section 30.1b of the Ordinance,a legitimate voting procedure of amalgamation requires the participation of at least 50% of members from of union; the votes in favour of amalgamation should exceed not less than 20% of those against the motion. If one of the amalgamated unions is an organization established outside Hong Kong, the consent of the Hong Kong Governor is required.
The right to organize unions is very much undermined by the absence of job security measures in Hong Kong. Anti-union discrimination clauses are written in section 21 of the Employment Ordinance but are poorly enforced. Sincethe burden of proof rests on the workers, it is very difficult for them to substantiate their case in court. Also, workers are only allowed to participatein trade union activities when they are off duty or if within working hourswith the permission of the employer. If workers take industrial actionssuch as striking during work hours, they will be treated as breaking the employment contract. The employers can punish them or even dismiss them.Furthermore, the violation of the anti-discrimination law only leads to a maximum fine of $20,000 but no reinstatement can be imposed.
The case of Wellcome Supermarket
In early February 1993, workers of the Wellcome Supermarket were dissatisfied with the management's decision to prolong their working hours. There was already a serious shortage of workers in the supermarket and the increase in wages of workers was very low. Therefore, some workers drafted a letterto the management to setting out their demands. Over five hundred workers signed the letter. On 9 September 1993, they submitted the letter to the management.
Later, workers who organized the action formed a preparatory committee toset up the Trade Union of Workers of the Wellcome Company Limited. They submitted their application for legal status to the government on 20 February 1993. Beginning on 2 March 1993, they distributed leaflets about the union.
On 5 March 1993, the management of Wellcome took action by transferring a workers' representative, Mr. Lau Wai Fung, from Kwai Chung district to Fo Tan district. (Mr. Lau had been working as a driver in Kwai Chung districtfor five and half years. After being transferred to Fo Tan district, his income was greatly reduced.) Management then dismissed Mr. Yeung Wing Kinwho was active in the preparatory committee and who helped in distributing leaflets. On the morning of the same day management asked the manager ofa branch to resign. The manager was one of the initiators of the trade union. At half past four of the same day, the management called a meeting with managers of all branches and reminded them not to participate in organizingthe trade union nor to join it.
The series of actions taken by the management of Wellcome indicated thatthey are trying to stop the setting up of the trade union by dismissing or transferring the organizers and warning their subordinates.
The preparatory committee filed complaints to the Labour Department and demanded that Wellcome Company be prosecuted under the anti-discriminationclauses in Section 21 of the Employment Ordinance. The Labour Department finished its investigation in August 1993 and prosecuted the Store Supervisorof the Wellcome Supermarket. The highest penalty of the offense is only HK$20,000. However, at present there are no laws requiring employers to reinstate dismissed workers. Finally, the Trade Union of the Wellcome CompanyLimited was set up in June 1993. All the dismissed workers are now working for other companies.
II. Right of collective bargaining
Workers should have the right of collective bargaining so that they can organize themselves to negotiate with employers on an equal basis. In the collective bargaining process, the employer should recognize the statusof the trade union.
International Labour Convention Nos. 84 and 98 provide safeguards and demands that workers should not be discriminated against by employers because of their participation in trade unions. It is the right of trade unions toreach collective agreements with employers through voluntary conciliation or conciliation assisted by the government.
The Hong Kong government maintains a laissez faire attitude with respect to collective bargaining. Its policy is passive. Because employee unionsin Hong Kong are weak, voluntary negotiations and collective bargainingis almost impossible without positive promotion from the government.
The trade unions' rights of representation, consultation and information are also restricted. The common practice of employers interfering with the fiscal subsidies of unions are not as common today. Now employers adopt a divide and rule strategy, and refuse to recognize unions or their representatives. Employers tend to adopt negative sanctioning policies to deter routine union activities. For example, after the Cathay Pacific Airways flight attendants strike, management unilaterally send out letters asking the members of the union whether they would like to continue or discontinue the usual practice of a check-off system.
Furthermore, a common phenomenon in Hong Kong is the co-existence of several employees' unions in the same enterprise or industry. Employers usually refuse to recognize unions that challenge their policies, while offering consultative or bargaining status to the "responsible" unions.
The government uses the following argument to support its position that collective bargaining is inappropriate: low union participation, multiplicity of small business, high mobility of the work force, politicized trade union movement, sustained economic growth resulting in rapid increase in wagesand the steady improvement in statutory protection for workers under labourlaws. The government further explains voluntary conciliation in labour disputesand the establishment of a joint consultative machinery can replace collective bargaining. It is problematic defining whether a joint consultation canbe a form of collective bargaining. Briefly, joint consultation is not anegotiating body nor a decision making body. The employees are invited tobe "consulted" and the final decision rests in the hands of the management.
There are an estimated 89 collective agreements covering 120,000 workers in Hong Kong. However, there is doubt about the enforcement and legality of these agreements. For example, despite the well known collective agreement signed by the Cable and Wireless Company and its union, in March 1991 management suddenly dismissed hundreds of workers without any prior notice, and blatantly refused to negotiate with concerned unions on this matter.
III. Right to strike
Usually, workers resort to striking for their rights and benefits only when employers do not respect their demands and the conflict remains unresolved.
According to the International Covenant on Economic, Social and Cultural Rights, Article 8 (4), everyone has the right to strike. This international covenant will be applicable to Hong Kong under the Sino-British Joint Declaration and the Basic Law. For many years the Hong Kong government has not fulfilledits responsibility to the covenant. There is no legislation recognizing the right to strike.
It is a fact that Hong Kong workers do not have the right to strike butthey have the freedom of strike. There is no law in Hong Kong that restricts or prohibits workers from striking. However, there is no law to protect this right either. Under the law, employers can deduct wages of workers, suspend their job or even dismiss them when workers break the employment contract. Workers cannot fulfill the employment contract temporarily when they are carrying out industrial actions such as working slowly or strike.Without the protection of law, the right to strike cannot be realized atall.
The recent 17-day strike by Cathay Pacific Airways flight attendants is a good illustration. Repeatedly intimidated and the threatened with dismissal,the flight attendants were compelled to stop their industrial action. Upto June 1993, nearly 1,000 of them experienced wage deductions, and several activists faced demotions or other forms of punishment.. The labour sectorin Hong Kong and other concerned groups request that the right to strike should be written down clearly in the labour legislation and that the Employment Ordinance should be modified so that the employment contract will be frozen during the strike. They also asked for legislation against unfair dismissals.The legislation would require that employers be given reasons whenever they dismiss their employees. If the employees are not satisfied with the reason,they can file a complaint with the Labour Department and Labour Tribunal.If the tribunal decides that the dismissal is unfair, the employees can be reinstated or compensated.
Legal protection for picketing in industrial action is also limited. According to Section 46 of the Trade Union Ordinance, it is legal when the purposes of picketing are for conveying messages or for peacefully persuading other workers. However, if there is any action that is perceived as threatening other people or causing any disorder, the picketing becomes illegal. Further restrictions are imposed by the Public Order Ordinance, Section 18 of the ordinance provides: "When 3 or more persons, assembled together, conduct themselves in a disorderly, intimidating, insulting or provocative mannerintended or likely to cause any person reasonably to fear that the persons assembled will commit a breach of the peace, or will by such conduct provoked other persons to commit a breach of the peace, they are an unlawful assembly." Numerous cases have shown that workers who were picketing outside the factory, were confronted by the police and forced to disperse. Furthermore, many employers can easily obtain injunctions from the court to remove any"obstructionof business".
Moreover, the right to strike by civil servants is constrained. ArticleXVI.A of the Letter Patent provides authority to the Governor to suspend or dismiss a civil servant under sufficient cause. In October 1990, this article was quoted by the Postmaster General to intimidate the postal unionists with the possibility of dismissal to deter them from organizing industrialaction. This action was condemned by experts with the ILO.
In Hong Kong, the present relationship between employers and workers isin crisis. Without a mechanism for collective bargaining, workers can onlyresort to industrial action if the conflict with employers cannot be resolved.Therefore, the government should take measures to provide channels for collective bargaining through which workers can negotiate with the employers on anequal basis. The right to organize trade unions, the right to strike andthe right of collective bargaining of workers should be ensured to help resolve conflicts.
The Strike of Cathay Pacific's Flight Attendants
Since the restructuring of management in 1989, Cathay Pacific Airways has increased the workload of its flight attendants. Extra work comes the vacuum left by staff who resigned from the company and an increase in the number of flights. In mid-1992, the Flight Attendants Union expressed to the management their difficulties in safeguarding the safety of passengers under such a heavy workload. They demanded the management to increase manpower. However,the management disregarded this reasonable demand.
As the management disregarded the demand and offered a small increment ofwages, the flight attendants started an industrial action in early December 1992, refusing to do extra work. Management immediately dismissed three flight attendants.
To protect their rights, the Flight Attendants Union went on strike on 1January 1993. They made three demands: (1) to unconditionally reinstate the dismissed flight attendants; (2) to solve the shortage of manpower and improve the working system and schedule to safeguard the safety of passengers;(3) to adjust the increasing rate of wage and benefits.
The strike continued for many days. Although the Union and management almost reached an agreement after several negotiations, management put forward an additional condition which would reserve the right to discipline attendants who had joined the strike, including termination. The negotiation reached a deadlock. The Labour Department failed to mediate
the conflict; it refused to appoint a mediator to settle the conflict. Management's insistence on discipline was an attempt to attack the Union and crush theright to strike.
On 18 January 1993, management issued a notice to all flight attendants announcing it was cutting their wages during the strike. According to theTrade Union Ordinance, a deduction in wages during industrial dispute isillegal. The trade union has the right to complain to the Labour Department. Management announced an ultimatum on 27 January 1993 demanding that flight attendants had to report for duty before the deadline. Finally, most of the flight attendants reported for duty, but there were still 500 flight attendants who held on until the last minute.
Sixty organizations formed the "Alliance Supporting the Flight Attendants of Cathay Pacific". They supported the flight attendants in fighting for their rights. At this point, the industrial strike was no longer an individual issue. It became a movement protecting the right to strike forall workers in Hong Kong. The Alliance called for an international boycott of Cathay Pacific Airways.
The Legislative Council also passed a resolution calling for the Governor to set up an arbitration committee to settle this industrial dispute.
It seemed that the resolution of the Legislative Council could prevent the flight attendants from being disciplined. They ended the strike and wentback to work. However, , there was no work arranged for some flight attendants who had joined the strike including some active union members. Moreover,the three dismissed flight attendants were not reinstated. The disciplinary action of cutting wages was carried out.
This industrial dispute uncovered many loopholes in the present Employment Ordinance. It aroused public concern about the present insufficiency oflegal safeguards for the right to strike. Many people and concerned groupsare now working together to further modify labour laws to protect the basicrights of workers.
IV. Discrimination against foreign domestic helpers in Hong Kong
Government figures show that at the end of 1992 there were about 100,000foreign domestic workers in Hong Kong. Of these workers, 90% are from the Philippines; 10% are mainly Thais, Indians and Sri Lankans. Among these foreign domestic workers, 99% are women. Although migrant workers are recognized under international law as a vulnerable group, the Hong Kong governmenthas done little to protect them. In fact the government has consistently exacerbated the position of these women by implementing harsh policies andby failing to ensure effective means of enforcing their rights.
A. The immigration department and the two-week rule
Foreign domestic workers' entry and stay in Hong Kong are supervised by the Immigration Department. The Immigration Ordinance grants the Immigration Department broad discretionary powers, and as a result, much of the detail relating to the granting of and the terms and conditions of visas dependson government policy. The most controversial policy, and the one which causes foreign domestic workers greatest hardship, is the two-week rule. The policy was introduced by the Immigration Department in 1987 to prevent foreign domestic workers from changing jobs before their two-year contract ends.
When a worker enters Hong Kong, her passport is stamped with a condition permitting her to remain in Hong Kong for twelve months, or two weeks after termination of her contract, whichever is the earlier. In other words, if the contract is terminated prematurely by either party, the worker must leave Hong Kong within two weeks; if she fails to do so she is committing a criminal offense. The two-week rule is not applied to other types of migrant workers, only to foreign domestic helpers.
The Director of Immigration has the discretion to allow a worker to remain if he is satisfied that there are good reasons to allow her to stay longer.There are no published guidelines to indicate how that discretion is exercised, but the government has said that the most common reason for granting an extension of the two-week period is to allow the worker to make a claim against the employer, usually before the Labour Tribunal. However, the two-weekrule has imposed adverse effects. It prevents foreign domestic workers whohave legitimate grievances against their employers from making complaints to the Labour Department.
The foreign domestic worker is often afraid that the employer will dismiss her and she will then have to leave Hong Kong within two weeks. Moreover,the two-week period is not long enough to enable the worker to find an alternative employer, so dismissal by the employer or resignation will almost inevitably lead to deportation from Hong Kong. This allows the employer to take advantage of the fears of the worker and many abuse his/her power. At the same time,it makes it easier for recruitment agencies in the Philippines to collude with the employer to underpay the worker, knowing that the worker will beafraid to complain.
When considering the effects of the two-week rule it is important to remember the vulnerable position of the foreign domestic worker. She usually comesto Hong Kong to provide her family with much needed income. Many of thewomen have children whom they have painfully chosen to leave behind in orderto support them financially. Furthermore, the foreign domestic worker will often have incurred debts to the employment agency in order to come to HongKong. Indeed, it has been estimated that some workers will have spent the equivalent of three months wages to get their job in Hong Kong, and thismoney is often borrowed at high rates of interest. As a result of this,the worker often has no choice but to put up with emotional and physical abuse in order to keep her job.
B. Terms and conditions of employment
Article 7 of the International Covenant on Economic, Social and Cultural Rights stipulates that (1) fair wages and equal remuneration for work ofequal value, without distinction of any kind. In particular, women being guaranteed conditions of work not inferior to those enjoyed by men, withequal pay for equal work; (2) safe and healthy working conditions; (3) rest,leisure and reasonable working hours and periodic holidays with pay, aswell as remuneration for public holidays.
In order to gain entry to Hong Kong, foreign domestic workers are required to enter into a standard form contract with their employer. The contractsets out basic terms such as travel to and from Hong Kong, place of employment, minimum wage, rest days, medical provisions and type of work. However, many employers violate the contract and the rights of foreign domestic workers are not protected.
(i) Payment of wages
Although an amount is specified in the contract, problems frequently arise with respect to enforcement of this provision. A lot of foreign domestic workers do not receive the full amount they are entitled to, and if they do complain to the Labour Department or Tribunal they may experience difficulties.For instance, employers will claim that the worker agreed to be paid less than the amount stated in the contract, and if the Labour Tribunal or theLabour Department believes the employer no action is taken and the money cannot be recovered. Many employment agencies trick the worker into signing receipts of payments at the beginning of the contract even though no payment has been received. If the worker complains that she has not been paid orthat she has not been paid the full amount, the employer produces the presigned receipts as evidence of the payment. Obviously, there are a lot of loopholes in the government's policy on foreign domestic workers. As a result foreign domestic workers are victimized.
The Hong Kong government recently increased the monthly wage of foreign domestic worker from HK$3,200 to HK$3,500. However, some migrant workers' organizations and unions think that because the monthly wage has not been raised for three years or kept up with inflaction, HK$3,500 isstill low. Moreover, the increase in wages only applies to the contracts signed in or after October 1993 and is not applicable to present contracts.This is not fair to other foreign domestic workers.
(ii) Hours of work and place of work
The hours that foreign domestic workers must work each day are not specified in the contract of employment. The government has said that it is not practical to specify a maximum number of hours in the employment contract given the"nature" of domestic chores. It maintains that domestic workrequire services to be rendered "intermittently" throughout the day with intervals for rest periods. In fact many foreign domestic workers work like slaves, there are many reports of foreign domestic workers in Hong Kong working continually for 18 hours every day.
Apart from that, place of work is specified in the employment contract.It should be the employer's home. However, foreign domestic workers areseen working in shops, restaurants, wet markets, etc. Some of them even work in the home of the employers' relatives. They are afraid to complain because of the same reason: being terminated and forced to leave Hong Kong within two weeks.
(iii) Rest days and statutory holidays
The standard form contract states that a foreign domestic worker must begiven one rest day every week. She is also entitled to eleven statutory holidays and seven days leave a year. However, many foreign domestic workers do not enjoy all the holidays to which that they are entitled. There was a worker who did not receive one single rest day in 18 months.
C. Difficulties in enforcing rights
Under the present policy on foreign domestic workers, even if the worker dares to file a complaint against the employer who has abused her, she will face a lot of difficulties. The Immigration Department will normally granther an extension of the two-week period to allow her to remain in Hong Kongand pursue her claim. However, during this period, she is not allowed towork and will not be living with her employer. She will therefore have great difficulty in supporting herself in terms of food and living, lawyer's consultation fees, charges for extension of visa, etc. Moreover, the enforcement procedureis slow and cumbersome. There will be some attempts at conciliation by the Labour Department before the case is brought before the Labour Tribunal.Even if she is successful in obtaining an award from the Tribunal, the District Court is responsible for enforcing it. The enforcement procedure itselfcan take a number of months or even a year. Eventually the foreign domestic worker may receive the money owed to her -- but in the mean time she will have suffered so much anguish, aggravation and pressure that the law is in most cases meaningless. If she loses the case, all her hopes, efforts and money will be gone forever. It is not suprising that the Labour Department and government's policy does not encourage foreign domestic workers to pursue a claim against the employer.
To conclude, the two-week rule stipulated by the Hong Kong government seriously violates the basic human rights of foreign domestic workers. The Hong Kong Bill of Rights, Article 1, states that "The rights recognized in this Bill of Rights shall be enjoyed without distinction of any kind, such asrace, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." However, the two-week rule restricts the exercise of this right by foreign domestic workers because once they are terminated or resign, it will be very difficult for them to find an alternative employer. Faced with violating a contract with employers, as well as the possibility of receiving less salary or work in addition to household work,foreign domestic workers can only remain silent if they want to keep their job. The protection offered by the employment contract becomes just words on paper. In some serious cases, employers will take advantage of the two-week rule to abuse the foreign domestic workers, for example by making them work as slaves and abuse them physically or sexually. How can foreign domestic workers enjoy the rights provided under Articles3 and 4 of the Bill of Rights which stipulates no torture or inhuman treatment and no slavery or servitude?
The number of foreign domestic workers is increasing every day. However,the government's policies and regulations are essentially pro employer.As a result, vulnerable foreign domestic workers are subjected to further exploitation and unfair treatment. This severely violates the spirit of international law that the rights of migrant workers should be protected.The Hong Kong government should abandon the two-week rule immediately and implement effective measures to punish employers who have violated the employment contracts in order to protect the rights of foreign domestic workers inHong Kong.
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