A135-E

EMPLOYMENT AND LABOUR RELATIONS (MISCELLANEOUS AMENDMENTS) ORDINANCE 1997

An Ordinance to amend the Employment Ordinance and the Trade Unions Ordinance, to repeal the Employee's Rights to Representation, Consultation and Collective Bargaining Ordinance, to revoke the suspension of operation of certain enactments; and for ancillary matters.

[31 October 1997]

Enacted by the Provisional Legislative Council.

1. Short title

This Ordinance may be cited as the Employment and Labour Relations (Miscellaneous Amendments) Ordinance 1997.

2.Interpretation

In this Ordinance, unless the context otherwise requires---

"Employee's Rights to Representation, Consultation and
Collective Bargaining Ordinance" (《僱員代表權、諮詢
權及集體談判權條例》) means the Employee's Rights to
Representation, Consultation and Collective Bargaining Ordinance (101 of 1997);

"Employment (Amendment) (No. 4) Ordinance 1997"
(《1997年僱傭 (修訂) (第4號) 條例》) means the
Employment (Amendment) (No. 4) Ordinance 1997 (98 of 1997);

"Employment Ordinance" (《僱傭條例》) means the
Employment Ordinance (Cap. 57);

"Legislative Provisions (Suspension of Operation) Ordinance
1997" (《1997年法律條文 (暫時終止實施) 條例》) means
the Legislative Provisions (Suspension of Operation) Ordinance
1997 (126 of 1997);

"Trade Unions (Amendment) (No. 2) Ordinance 1997"
(《1997年職工會 (修訂) (第2號) 條例》) means the Trade
Unions (Amendment) (No. 2) Ordinance 1997 (102 of 1997);

"Trade Unions Ordinance" (《職工會條例》) means the
Trade Unions Ordinance (Cap. 332).

3. Sections repealed

Sections 21D, 21E, 21F, 21G, 21H, 21I and 21J of the Employment Ordinance are repealed.

4. Provisions consequential on or ancillary to section 3

(1) (a) The consequential amendments set out in Part 1 of Schedule 1 shall have effect.

(b) The transitional provisions set out in Part 1 of Schedule 2 shall have effect.

(2) On the commencement of section 3 and subsection (1)(a), section 5(1) and (2) of the Legislative Provisions (Suspension of Operation) Ordinance 1997 (which suspends the operation of the Employment (Amendment) (No. 4) Ordinance 1997), to the extent that it was in effect immediately before that commencement, shall cease to have effect.

Trade Unions Ordinance

5. Officers and members of trade unions

Section 17(2) of the Trade Unions Ordinance is amended by adding "and is or has been engaged or employed in a trade, industry or occupation with which the trade union is directly concerned" after "Hong Kong".

6. Rules

Section 18 is amended---

1. in subsection (2)(b)---
   1. by repealing "When" and substituting "If";

   2. by adding immediately before the full stop---

   ", but if he is not so satisfied he shall refuse to register the rules";

2. in subsection (5)---
   1. by repealing "When" and substituting "If";

   2. by adding immediately before the full stop---

   ", but if he is not so satisfied he shall refuse to register the rule or rules".

   7. Section added

   The following is added---

   "18A. Refusal by Registrar to register rules under section 18

   (1) Where the Registrar refuses to register the rules of a trade union sent to him under section 18(2)(a) in connection with an application for registration of the trade union he shall, upon such refusal, serve on the applicants for registration of the trade union a notice in writing to that effect and shall specify in the notice the ground of his refusal.

   (2) Where the Registrar refuses to register a rule or rules in relation to a registered trade union sent to him under section 18(4) he shall, upon such refusal, serve on the union a notice in writing to that effect and shall specify in the notice the ground of his refusal.

   (3) Any person who is aggrieved by the refusal of the Registrar---

   1. under section 18(2)(b) to register the rules of a trade union sent to him under section 18(2)(a); or

   2. under section 18(5) to register any rule of a registered trade union sent to him under section 18(4), may, at any time before the expiry of 28 days after service by the Registrar of the notice required under subsection (1) or (2), as the case may be, appeal to the Court of First Instance against such refusal.

   (4) On the hearing of an appeal under subsection (3) the Court of First Instance may, if it finds that the requirements of section 18(2)(b) or (5), as the case may be, have been complied with, direct the Registrar to register the rule or rules under that subsection, but unless the court so finds it shall dismiss the appeal.".

8. Application of funds

Section 33(1) is amended---

1. in paragraph (j), by adding "subject to the approval of the Chief Executive," before "contributions";

2. in paragraph (l), by repealing everything after "purpose" and substituting "which the Chief Executive may approve.".

9. Section added

The following is added---

"34. Use of funds for political purposes

Except as permitted under sections 33A and 33B, the funds of a registered trade union shall not, whether in Hong Kong or elsewhere---

1. be applied either directly or indirectly for any political purpose; or

2. be paid or transferred to any person or body of persons in furtherance of any political purpose.".

10. Sections added

The following are added---

"45. Affiliation with organizations in foreign countries

(1) A registered trade union may be or may become a member of an organization of workers or employers, or a relevant professional organization, which is established in a foreign country if, and only if, it is so authorized by secret ballot of a majority of the voting members of the union present at a general meeting.

(2) A registered trade union shall, within 1 month after becoming a member of an organization which is established in a foreign country as provided in subsection (1), notify the Registrar in writing of the fact.

(3) Except as provided in subsection (1), a registered trade union shall not be or become a member of an organization which is established in a foreign country unless---

1. the consent of the Chief Executive has been obtained; and

2. it is so authorized by secret ballot of a majority of the voting members of the union present at a general meeting.

(4) Any consent given under subsection (3)(a) may be withdrawn at the discretion of the Chief Executive.

(5) Where a registered trade union is or becomes a member of an organization which is established in a foreign country as provided in subsection (1) or (3), it shall not be necessary for the union to obtain the consent of the Chief Executive for the purposes of section 33(1)(j) in respect of the payment of any contribution by way of a membership fee to that organization.

(6) (a) In subsection (1), reference to an organization of workers or employers, or a relevant professional organization, which is established in a foreign country does not include reference to a foreign political organization or body.

(b) Nothing in subsection (3) shall be construed as allowing or providing for a registered trade union to be or become a member of a foreign political organization or body.

(7) A registered trade union that contravenes subsection (2) or (3) commits an offence and is liable to a fine at level 1.

(8) In proceedings for an offence under this section, a certificate signed by an officer of an organization which is established in a foreign country and stating---

1. the objects and qualification for membership of the organization;

2. the place of establishment of the organization; or

3. that a registered trade union is or was at a date or for a period specified in the certificate a member of the foreign organization, shall be admissible in evidence as proof of the matters so stated; and a certificate purporting to be signed by an officer of an organization which is established in a foreign country shall in the absence of evidence to the contrary be deemed to be such a certificate for the purposes of this section.

(9) In this section, unless the context otherwise requires---

1. "relevant professional organization" (有關專業組織), in relation to a registered trade union, means an organization the objects of which are to promote the interests of persons engaged or employed in a trade, industry or occupation which is the same as, or similar to, the trade, industry or occupation with which the registered trade union is directly concerned;

2. reference to an organization of workers, an organization of employers or a relevant professional organization includes reference to a federation of organizations of that particular type.

45A. Transitional provision in relation to section 45

(1) Section 45 does not apply in relation to a registered trade union's being a member of an organization which is established in a foreign country in the case where the trade union---

1. became a member of the organization during the period beginning with the commencement of the Trade Unions (Amendment) (No. 2) Ordinance 1997 and ending with the commencement of the Legislative Provisions (Suspension of Operation) Ordinance 1997 (section 3(1) of which suspends the operation of that Ordinance); and

2. has remained a member of the organization continuously since so becoming a member.

(2)Section 45 does not apply in relation to a registered trade union's being a member of an organization which is established in a foreign country in the case where the trade union---

1. was, immediately before the commencement of the Trade Unions (Amendment) (No. 2) Ordinance 1997, a member of the organization in accordance with section 45 as then in force; and

2. has remained a member of the organization continuously ever since, and section 45 as in force immediately before the commencement of the Trade Unions (Amendment) (No. 2) Ordinance 1997 shall continue to apply in relation to the trade union's being a member of the organization as if that Ordinance and the Employment and Labour Relations (Miscellaneous Amendments) Ordinance 1997 had not been enacted.

(3) Section 45 does not apply in relation to a registered trade union's being a member of an organization which is established in a foreign country in the case where the trade union---

1. was, immediately before the commencement of the Employment and Labour Relations (Miscellaneous Amendments) Ordinance 1997, a member of the organization in accordance with section 45 as then in force; and

2. has remained a member of the organization continuously ever since, and section 45 as in force immediately before the commencement of the Employment and Labour Relations (Miscellaneous Amendments) Ordinance 1997 shall continue to apply in relation to the trade union's being a member of the organization as if that Ordinance had not been enacted.

(4) To avoid doubt, it is declared that for the purposes of the continued application of section 45 as in force immediately before the commencement of the Trade Unions (Amendment) (No. 2) Ordinance 1997 or the Employment and Labour Relations (Miscellaneous Amendments) Ordinance 1997, as provided in subsections (2) and (3)---

1. any reference in that section to the Governor shall be read as reference to the Chief Executive;

2. any reference in that section to a fine of $500 shall be read as reference to a fine at level 1.

(5) Reference in subsections (3) and (4) to section 45 as in force immediately before the commencement of the Employment and Labour Relations (Miscellaneous Amendments) Ordinance 1997 is a reference to that section as so in force by virtue of section 3(1) of the Legislative Provisions (Suspension of Operation) Ordinance 1997.

(6) In this section---

"Employment and Labour Relations (Miscellaneous
Amendments) Ordinance 1997" (《1997年僱傭及勞資關
係 (雜項修訂) 條例》) means the Employment and Labour
Relations (Miscellaneous Amendments) Ordinance 1997 (135
of 1997);

"Legislative Provisions (Suspension of Operation) Ordinance
1997" (《1997年法律條文 (暫時終止實施) 條例》) means
the Legislative Provisions (Suspension of Operation) Ordinance 1997 (126 of 1997);

"Trade Unions (Amendment) (No. 2) Ordinance 1997"
(《1997年職工會 (修訂) (第2號) 條例》) means the Trade
Unions (Amendment) (No. 2) Ordinance 1997 (102 of 1997).".

11. Matters for which provision must be made in the rules of every registered trade union

Paragraph (h) of Schedule 2 is amended---

1. in subparagraph (iii), by repealing "and";

2. by adding---
   "(iiia) establishing an electoral fund;

   (iiib) the payment of any expenses of a kind mentioned in section 33A(1);

   (iiic) being or becoming a member of an organization which is established in a foreign country; and".

12. Provisions consequential on or ancillary to sections 5 to 11

On the commencement of sections 5 to 11, section 3(1) of the Legislative Provisions (Suspension of Operation) Ordinance 1997 (which suspends the operation of the Trade Unions (Amendment) (No. 2) Ordinance 1997), to the extent that it was in effect immediately before that commencement, shall cease to have effect. Employee's Rights to Representation, Consultation and Collective Bargaining Ordinance

13. Repeal

The Employee's Rights to Representation, Consultation and Collective Bargaining Ordinance is repealed.

14. Provisions consequential on or ancillary to section 13

(1) (a) The consequential amendments set out in Part 2 of Schedule 1 shall have effect.

(b) The transitional provisions set out in Part 2 of Schedule 2 shall have effect.

(2) On the commencement of section 13 and subsection (1)(a), section 4(1) and (2) of the Legislative Provisions (Suspension of Operation) Ordinance 1997 (which suspends the operation of the Employee's Rights to Representation, Consultation and Collective Bargaining Ordinance), to the extent that it was in effect immediately before that commencement, shall cease to have effect.

SCHEDULE 1 [ss. 4(1) & 14(1)]

1. Schedule amended

The Schedule to the Labour Tribunal Ordinance (Cap. 25) is amended by repealing paragraph 8.

1. Right of audience

Section 23(1)(e) of the Labour Tribunal Ordinance (Cap. 25) is amended by adding "with the leave of the tribunal," at the beginning.

2. Schedule amended

The Schedule is amended by repealing paragraph 9.

3. Rights of employees in respect of trade union membership and activities

Section 21B(1)(d) of the Employment Ordinance is repealed.

Trade Unions Ordinance 4. Register of members' names and addresses

Section 17B of the Trade Unions Ordinance is repealed.

If, during the period beginning with the commencement of the Employment (Amendment) (No. 4) Ordinance 1997 (which amended the Employment Ordinance and made certain consequential amendments to another Ordinance) and ending with the commencement of the Legislative Provisions (Suspension of Operation) Ordinance 1997 (section 5(1) and (2) of which suspends the operation of that Ordinance), an action was brought under section 21D of the Employment Ordinance as then in force, the provisions of the Employment Ordinance and the consequentially amended Ordinance in force immediately before the last-mentioned commencement shall continue to apply in relation to that action as if section 3 of this Ordinance had not been enacted.

Any collective agreement made in accordance with the provisions of Part IV of the Employee's Rights to Representation, Consultation and Collective Bargaining Ordinance and made before the commencement of the Legislative Provisions (Suspension of Operation) Ordinance 1997 (section 4(1) of which suspends the operation of that Ordinance) shall continue in effect, and the provisions of the first-mentioned Ordinance and the Ordinances consequentially amended by that Ordinance in force immediately before that commencement shall continue to apply in relation to such agreement as if section 13 of this Ordinance had not been enacted.