LegCo Paper No. CB(1)1933/96-97
(These minutes have been seen
by the Administration)
Ref : CB1/PL/MP/1
LegCo Panel on Manpower
Minutes of meeting held on Monday, 26 May 1997, at 2:30 p.m. in the Chamber of the Legislative Council Building
Members present :
Hon LAU Chin-shek (Chairman)
Hon CHAN Yuen-han (Deputy Chairman)
Hon SZETO Wah
Hon CHEUNG Man-kwong
Hon Frederick FUNG Kin-kee
Hon Michael HO Mun-ka
Hon Henry TANG Ying-yen, JP
Hon LEE Cheuk-yan
Hon CHENG Yiu-tong
Hon LEE Kai-ming
Hon LEUNG Yiu-chung
Hon Bruce LIU Sing-lee
Hon MOK Ying-fan
Members absent :
- Hon NGAI Shiu-kit, OBE, JP
Hon Ronald ARCULLI, OBE, JP
Dr Hon LEONG Che-hung, OBE, JP
Hon James TIEN Pei-chun, OBE, JP
Hon CHAN Wing-chan
Hon LAW Chi-kwong
Hon TSANG Kin-shing
Public officers attending :
- Ms Esther LEUNG
- Principal Assistant Secretary for
Education and Manpower
- Mr TSANG Kin-woo
- Assistant Commissioner for Labour
Clerk in attendance :
- Miss Polly YEUNG
- Chief Assistant Secretary(1)3
Staff in attendance :
- Miss Connie FUNG
- Assistant Legal Adviser 3
- Mrs Queenie YU
- Senior Assistant Secretary (1)8
I Confirmation of minutes of meetings and matters arising
(LegCo Paper Nos. CB(1)1420/96-97 and 1613/96-97)
1. The minutes of the Panel meetings held on 8 April 1997 and 28 April 1997 were confirmed.
II Date and items for discussion for next meeting
2.Members agreed to discuss the following items at the next Panel meeting to be held on Monday, 16 June 1997, at 2:30 p.m.
- review on vocational training and retraining services; and
- employees right to strike
(Post-meeting note: At the request of the Administration and with the concurrence of the Chairman, the next meeting was re-scheduled to be held for Friday, 20 June 1997, at 9:00 a.m.)
III Information papers issued since last meeting
(LegCo Paper No. CB(1)1626/96-97)
2.Members noted that a written submission from the Livestock Subcommittee of the Advisory Committee on Agriculture and Fisheries was issued vide LegCo Paper No. CB(1)1626/96-97.
IV Briefing on Unfair Dismissal Bill
(LegCo Paper Nos. CB(1)1654/96-97(01), (02), 1670/96-97(05) and the Administrations response tabled at the meeting and subsequently issued vide LegCo Paper No. CB(1)1709/96-97)
3.The Chairman reminded members that a Bills committee had been formed to study the Bill and that it was currently on the waiting list.
4. At the Chairmans invitation, Mr LEUNG Yiu-chung informed members that his proposed Bill was modelled on laws relating to unfair dismissal in the UK which were enacted in the 1970s by the Labour Government and had been widely accepted by both employers and employees since then. The main objectives of his Bill were to provide for the right of an employee not to be unfairly dismissed by the employer and to make provisions for remedies for unfair dismissal.
5. In presenting his brief, Mr LEUNG Yiu-chung stressed that his Bill proposed a new and comprehensive concept on protection against unfair dismissal for employees whilst the Administration, in introducing the Employment (Amendment) (No.2) Bill 1997, had only sought to plug existing loopholes in the provisions on long service payment. He then highlighted the following major differences between the two Bills:
- if enacted, his Bill would apply to all government employees whilst the Administrations Bill excluded all government employees from its application;
- the compensation proposed under his Bill was more comprehensive than that proposed by the Administration. The former would comprise a basic award, a compensatory award and a special award; and
- unlike the Administrations Bill which would require the mutual consent of the employer and the dismissed employee for the grant of a reinstatement or re-engagement order, his Bill would only require the consent of the employee.
6. In response, the Principal Assistant Secretary for Education and Manpower (PAS for E&M) re-affirmed the Administrations commitment to strengthening protection for employees against unreasonable dismissal as evidenced in the proposed amendments under the Employment (Amendment) (No.2) Bill 1997 which was currently being examined by LegCo. The Administration considered that Mr LEUNGs Bill had not provided a reasonable balance between the interests of employers and employees. It would not support the Bill on the following grounds:
- The Employment (Amendment) (No.2) Bill 1997 proposed by the Administration represented a reasonable package of improvement proposals and was supported by the Labour Advisory Board (LAB) whilst Mr LEUNGs Bill had yet to be discussed by LAB;
- The Bill proposed to introduce a basic award and a compensatory award for dismissals without considering the financial impact on employers. It would induce more disputes between employers and employees to the detriment of harmonious labour relations in Hong Kong. If enacted, the Bill might deter foreign investments in Hong Kong and affect the overall employment opportunities of the local workforce in the long run;
- a reinstatement or re-engagement order by the Labour Tribunal without the mutual consent of the employer and the dismissed employee would not be conducive to cordial employment relationship; and
- the proposed provision requiring an employer to provide reasons for dismissing an employee when other employees who held the same positions had not been dismissed in the case of redundancy might prompt employers to lay off more employees than necessary.
7. The Assistant Commissioner for Labour (AC for L) clarified that the qualifying period of service for protection against unreasonable dismissal in the Administrations Bill was two years. Nevertheless, in the case of protection against unlawful dismissal or unreasonable variation of contract, there was no requisite qualifying period of service.
8. The Chairman recalled that the Administration had made the above views and most Panel members present at the meeting maintained clear positions on issues related to reinstatement and re-engagement which were fundamentally different from that of the Government. He did not envisage that the difference in opinion could be resolved at the meeting and therefore adjourned the discussion on reinstatement/re-engagement.
9. In reply to a member, Mr LEUNG Yiu-chung said that in the UK, the Employment Protection (Consolidation) Act 1978 was supplemented by a set of legal procedures for lodging or handling claims for unfair dismissal, as well as a code of practice providing guidance to employers, employees, as well as adjudicators in determining the reasonableness or otherwise of certain conduct. Since his Bill was modelled on the UK laws, he proposed to adopt the practices of the UK if his Bill was enacted.
10. On the appropriateness of current provisions on terminal compensation, PAS for E&M advised that the Employment (Amendment) (No.2) Bill 1997 proposed to impose civil liabilities on top of existing criminal sanctions on employers for unlawful dismissals on grounds of pregnancy, sick leave, work-related injury and participation in union activities. Since legal remedies for unlawful or unreasonable dismissal including reinstatement or re-engagement orders, long service payment and end of year payment had already been proposed on the basis of the tripartite consensus reached at the LAB, the Administration did not consider it necessary to conduct a separate review on these provisions at the present stage. AC for L also informed members that regular reviews on labour laws were conducted by the Labour Department and a review on long service payment was conducted about three years ago.
11. In reply to a members enquiry on the legislative progress of the Employment (Amendment) (No.2) Bill 1997, PAS for E&M confirmed that the Administration had responded to a number of issues raised by the LegCo Secretariat legal adviser. It was the Administrations intention to resume Second Reading debate of the Bill at the Sitting on 17 June 1997.
12. The Chairman reminded members that the Unfair Dismissal Bill would be discussed by the LAB at its meeting on 28 May 1997. In this connection, Mr LEUNG Yiu-chung informed the meeting that he would seek Members support for his Bill to resume Second Reading debate within the current LegCo Session regardless of whether the Bills Committee would be activated in time.
V. Employees right to strike
(LegCo Paper Nos. CB(1)1654/96-97(02) and 1709/96-97)
13. In presenting his information paper, Mr LEE Cheuk-yan said that the right to strike was affirmed in Article 27 of the Basic Law, Article 8 of the International Convenant on Economic, Social and Cultural Rights, as well as the International Labour Convention (ILC) No. 87. Nevertheless, the Administration had not given effect to employees right to strike in existing legislation. He said that the information contained in para 6 of the Administrations paper was inaccurate as workers in Hong Kong had only the freedom, but not the right, to strike. In 1991, the Government invoked the Letters Patent to warn Post Office workers about their proposed sit-in action. The intervention was later ruled by the International Labour Organization to be in breach of the ILC. He also held the view that the Administrations stance against legislating for the right to strike was inconsistent with the Basic Law.
14. In response, AC for L explained that employees right to strike was already provided for in the Employment Ordinance. An employee who had been given notice by his employer to terminate his contract would still be entitled to severance or long service payments if he took part in a strike before the expiry of his notice. In addition, the Employment (Amendment) (No.2) Bill 1997 and the Trade Unions (Amendment) (No.2) Bill 1997 introduced into LegCo on 19 March 1997 sought to improve legal remedies available to employees for unlawful dismissal, and to provide immunity from civil suits in respect of certain specified actions.
|15. AC for L said that according to legal advice, one of the objectives of the Basic Law was to preserve relevant existing legislation in the Hong Kong Special Administration Region after 1 July 1997. On this basis, Article 27 of the Basic Law preserved, among others, existing legislative provisions on the freedom or liberty to strike. In this connection, the Chairman requested the Administration to make available its legal advice on the right to strike and the interpretation of Article 27 of the Basic Law. Members also agreed that the said advice should be passed to the Legal Service Division for comments and the issue would be further discussed at the next meeting.||EMB and|
16. Mr LEE Kai-ming echoed the concerns expressed by Mr LEE Cheuk-yan and recalled that when the Basic Law was drafted, over 160 labour organizations had urged for inclusion in the Basic Law the right to strike, which was to be distinguished from the freedom to strike. He said that when an employee was dismissed due to participation in a strike, he/she would lose his/her employment benefits. In this regard, the labour sector had lobbied the Labour Department to introduce legislation on employees right to strike. Following the Cathay Pacific strike in 1993, the Labour Department had conducted a review on the labour relations system in Hong Kong and proposed certain amendments to the relevant Ordinances. Nevertheless, Mr LEE considered that issues related to the right to strike had not been adequately addressed.
17. On the proposed seven days notice to be served on the employer before taking strike action and eligibility for severance or long service payment, AC for L confirmed that the proposal had not been pursued by the Administration as a result of objection from the employee representatives at the LAB. Nevertheless, some members clarified that the objection of the employee representatives was primarily on the length of the prior notice which was considered too long. Mr LEE Kai-ming also informed members that a number of labour organizations had made counter proposals on wage and employment protection for employees who went on strike but these proposals had not been dealt with by the Administration.
18. Mr LEE Cheuk-yan stressed that employment protection for workers who participated in strike was an important element in the basic right to strike. He opined that the Administrations proposals were only targeted at compensation and would only cover employees who would otherwise be entitled to long service payment or severance payment. In his opinion, the employment contract between an employer and an employee who went on strike should be preserved during the strike period. He also urged the Administration to make reference to overseas countries where employees statutory right to strike was firmly in place and legislate for such a right in Hong Kong without delay.
19. The meeting ended at 3:30 p.m.
Legislative Council Secretariat
26 June 1997
Last Updated on 21 August 1998