Provisional Legislative Council
PLC Paper No. CB(1)219
(These minutes have been
seen by the Administration)
Ref : CB1/PL/MP
Panel on Manpower
Minutes of special meeting held on Tuesday,
19 August, 1997, at 10:45 a.m. in the Chamber of the
Legislative Council Building
Members present :
Hon CHAN Kam-lam (Chairman)
Hon Mrs Sophie LEUNG LAU Yau-fun, JP (Deputy Chairman)
Hon WONG Siu-yee
Hon James TIEN Pei-chun, JP
Hon HO Sai-chu, JP
Hon LEE Kai-ming
Hon Mrs Peggy LAM, JP
Hon Henry TANG Ying-yen, JP
Dr Hon Mrs TSO WONG Man-yin
Hon MOK Ying-fan
Hon CHAN Yuen-han
Hon CHAN Wing-chan
Dr Hon Philip WONG Yu-hong
Hon Bruce LIU Sing-lee
Hon Ambrose LAU Hon-chuen, JP
Hon CHENG Yiu-tong
Dr Hon LAW Cheung-kwok
Members absent :
Hon Ronald ARCULLI, JP
Hon Frederick FUNG Kin-kee
Hon TAM Yiu-chung, JP
Members in attendance :
Hon Mrs Elsie TU, GMB
Hon YUEN Mo
Hon CHOY So-yuk
Public officers attending :
- Mr Matthew CHEUNG
- Deputy Secretary for Education and Manpower
- Miss J A Willis
- Commissioner for Labour
- Mrs Jennie CHOR
- Deputy Commissioner for Labour (Acting)
- Mr TSANG Kin-woo
- Assistant Commissioner for Labour (Labour Relations)
- Mrs Jenny CHAN
- Assistant Commissioner for Labour (Employee Rights and Benefits)
- Mr D C CHEUNG
- Principal Assistant Secretary for Education and Manpower (Acting)
Clerk in attendance :
Staff in attendance :
- Miss Polly YEUNG
- Chief Assistant Secretary (1)3
- Mr Arthur CHEUNG
- Assistant Legal Adviser 5
- Mr Daniel HUI
- Senior Assistant Secretary (1)7
I.Discussion with the Administration on views of the Labour Advisory Board on the Legislative Provisions (Suspension of Operation) Ordinance 1997
(PLC Paper No. CB(1)151 and PLC Paper No. CB(1)157)
The Chairman said that the purpose of the meeting was to receive the Administration's report on the views of the Labour Advisory Board (LAB), as finalised at its meeting on 15 August 1997, on the five labour-related Ordinances covered by the Legislative Provisions (Suspension of Operation) Ordinance 1997. Members noted that the LAB had held four meetings to discuss the subject while its Committee on Employees' Compensation and Committee on Labour Relations had held one and two meetings respectively.
Employee's Rights to Representation, Consultation and Collective Bargaining Ordinance (ERRCCBO)
2.The Commissioner for Labour (C for L) advised that having considered the deliberations of the Committee on Labour Relations (LR Committee) and the present circumstances of Hong Kong, the majority of members of the LAB agreed that it was not appropriate to bring the ERRCCBO into operation and that the LAB should continue to explore modes of negotiation and collective bargaining best suited to Hong Kong. It was also agreed that Labour Department (LD) should strengthen the promotion of voluntary negotiation at the enterprise level. The Assistant Commissioner for Labour (Labour Relations) (AC for L (LR)) supplemented that the LD would establish a specialised team and put in additional resources for this purpose.
3.Some members requested the Administration to clarify the position of employee representatives of the LAB on the ERRCCBO and expressed doubts on the implementation of voluntary collective bargaining in Hong Kong as suggested by the Administration. In response, C for L confirmed that the majority of employee members agreed that it was not appropriate to bring the Ordinance into operation. However, five of the six employee representatives had indicated their support for legislation on collective bargaining. She pointed out that one employee representative was prepared to consider different options including the legislative and non-legislative approaches. Responding to a member's remarks that the views of employee representatives on mandatory collective bargaining might have been misrepresented, C for L reiterated the following points:
- The majority of LAB members considered it not appropriate to bring the ERRCCBO into operation; and
- the contents of the press release and subsequent brief issued by the LD reporting the views and conclusions of the LAB had been agreed by all LAB members.
4.In reply to members, AC for L (LR) advised that Hong Kong had implemented the International Labour Convention (ILC) No. 98 on Right to Organise and Collective Bargaining since 1975. Pursuant to the Convention, Hong Kong had taken measures appropriate to its conditions to encourage and promote voluntary negotiation between employers and workers organisations. He stressed that ILC No. 98 did not obligate governments to impose collective bargaining by statute. In this connection, he said that one of the functions of the new team to be set up in the LD would be to draw up, in consultation with trade unions and employer associations, guidelines/codes of practice on effective communication and voluntary negotiation for reference by employers and employees.
5.As regards the Administration's position on the Ordinance, C for L re-affirmed the Administration's objection to mandatory collective bargaining in Hong Kong at the present stage. She also referred to the UK where despite the absence of legislation on collective bargaining, collective negotiation took place between employers and their staff. The Administration also informed members that in Hong Kong voluntary collective negotiation had been in practice in a number of trades, notable printing, catering and construction.
6.Dr LAW Cheung-kwok stated that the Hong Kong Association for Democracy and People's Livelihood supported legislation on collective bargaining. He suggested that the Administration should consider improvements on the basis of the ERRCCBO and commission a consultancy study to draw up appropriate recommendations. C for L responded that the LD would consider sending its officers on an overseas study tour so as to gauge overseas experience in practising collective bargaining. Mr James TIEN opined that in reviewing overseas countries' experience in collective bargaining, the Administration should look into the impact of collective bargaining on the economy as well.
7.The Deputy Secretary for Education and Manpower (DS/EM) reiterated that by international standards, Hong Kong had a harmonious labour relations system and the average number of working days lost through labour disputes in the past three years was only 0.5 days per 1,000 wage earners and salaried employees. He also confirmed that the Education and Manpower Bureau (EMB) would fully support LD's proposal to establish a new team to promote effective communication and voluntary negotiation.
Employment (Amendment) (No. 4) Ordinance 1997
8.C for L said that all members of LAB agreed with the majority view of the LR Committee that there was no need to bring the Amendment Ordinance into effect as similar protection to employees against dismissal due to trade union membership and participation in union activities had been provided for under the Employment (Amendment) (No. 3) Ordinance 1997 enacted on 27 June 1997. The LAB also agreed that the LR Committee should review the Employment (Amendment) (No. 3) Ordinance 1997 one year after it had come into effect, in particular the provisions on re-instatement.
9.Members noted that the main difference between the Employment (Amendment) (No. 4) and (No. 3) Ordinances with respect to re-instatement was that the former would not require the mutual consent of the employer and employee for the award of a re-instatement order while mutual consent was required under the latter Ordinance. Some members doubted the efficacy of the provisions on re-instatement if such an order was contingent on the consent of the employer as well. In this connection, C for L cautioned against assuming that all employers would object to re-employing employees dismissed due to participation in trade union activities. She also reported that most members of the LR Committee considered that compulsory re-instatement would not work without the consent of both parties involved.
10.In response to a member's enquiry, AC for L (LR) clarified that under the Employment (Amendment) (No. 4) Ordinance, there was a possibility that the Labour Tribunal could award a re-instatement order on top of terminal compensation payable to the employee for a wrongful act of dismissal.
11.Some members noted that the Disability Discrimination Ordinance (DDO) provided for compulsory re-instatement and questioned the basis for the Administration's objection to compulsory re-instatement in the Employment Ordinance. AC for L (LR) explained that the objectives of the two Ordinances were different as the DDO dealt with discriminatory acts while the primary purpose of the Employment Ordinance was to provide for employment protection.
Trade Unions (Amendment) (No. 2) Ordinance 1997
12.C for L informed the Panel that the LR Committee had earlier on considered a comprehensive review on the Trade Unions Ordinance (TUO) conducted by the LD and had recommended that the amendments proposed by the review should be adopted. A summary of the recommendations of the review was set out in the Appendix to the Administration's information paper tabled at the meeting.
(Post-meeting Note: The information paper has been circulated to members vide PLC Paper No. CB(1)157 dated 20 August 1997).
13.In response to members, C for L clarified that with respect to section 45 of the TUO, LAB had agreed to amend it to allow a trade union to affiliate with related organisations (i.e. organisations of workers, employers and relevant professional organisations) overseas but it had to notify the Registrar of Trade Unions of such affiliation within one month. As a safeguard, it would be necessary for the affiliation to be approved by a majority of members present at a general meeting of the unions. However, the requirement to seek the Chief Executive's prior approval for affiliation with organisations other than those of workers, employers and relevant professional organisations was to be reinstated. The Administration considered that this proposed amendment was compatible with Article 149 of the Basic Law.
14.Members enquired whether voting by proxy was allowed under section 23 of TUO relating to voting for a change of union name. AC for L (LR) responded that any voting procedures would have to follow the voting rules of the trade union concerned. However, any proxy vote had to indicate the name of the voting member who decided to cast his/her vote by proxy.
Employment (Amendment) (No. 5) Ordinance 1997
15.C for L reported that the LAB had agreed to make 1 July and 1 October statutory holidays in place of the existing two floating holidays. The majority of members of LAB also recommended that 1 May should be an additional statutory holiday from 1999 onwards. The proposals would be forwarded to EMB for consideration.
|16.If 1 May was made a statutory holiday as from 1999, a member enquired whether the number of public holidays would also be increased from 17 days to 18 days. In this connection, C for L advised that the subject of public holidays was outside the purview of the LAB. DS/EM supplemented that the EMB was considering proposals from the LAB on statutory holidays and would also review the number of public holidays. The result of the review would be announced when ready.||EMB
Occupational Deafness (Compensation) (Amendment) Ordinance 1997
17.C for L reported on LAB's agreement to a package of improvement items proposed by the Working Group on Review of the Occupational Deafness Compensation Scheme (the Scheme). One of the major improvements was to add eight noisy occupations to the existing list of 17 specified noisy occupations for which compensation was payable under the Scheme. The LAB also recommended that Schedule 4, which was a table to translate different levels of hearing loss into percentages of permanent incapacity, as revised by the Amendment Ordinance should be replaced by progressive improvements as proposed by the Working Group. To enable the Occupational Deafness Compensation Board (the Board) to meet its statutory obligations and to improve the Scheme, members of the LAB also agreed that the rate of levy on employees' compensation insurance premium should be increased by 0.8% from the existing 1.5% to 2.3%.
18.Some members opined that as the Amendment Ordinance was in operation, the Administration's proposed improvements should be built upon the Ordinance rather than replacing it. In response, C for L said that this option had been considered by the LAB. She also recalled that the Administration had objected to the Amendment Ordinance from the outset in view of its financial impact on the Board and the fact that the Working Group's review would be proposing more comprehensive improvements on a gradual basis.
|19.As regards the necessary legislative amendments to give effect to the consensus reached at the LAB, DS/EM advised that the Administration would examine whether the proposed legislation would be "absolutely essential" for the purpose of introduction into the Provisional Legislative Council. Mr Bruce LIU stated his view that he did not consider the proposed amendments "absolutely essential". Mr WONG Siu-yee opined that whether the introduction of the proposed legislation was "absolutely essential" was primarily a matter for the Administration to consider while the legislature was entitled to scrutinize and vote on the proposed legislation. In this connection, the Chairman advised that it might not be appropriate for the Panel to pursue this issue at the meeting.||EMB
20.Some members enquired whether the Administration would consider injecting additional funds into the Board instead of increasing the rate of levy on employees' compensation insurance premium. In response, C for L advised that there was little likelihood of such a capital injection as it was the Administration's view that compensation payable under the Scheme should be a collective responsibility of employers.
II.Any other business
Progress Report on the Supplementary Labour Scheme (SLS)
(PLC Paper No. CB(1)152)
21.Referring to paragraph 11 of the information paper, DS/EM said that a comprehensive review of the SLS was in progress and members' views on the scheme would be taken into consideration. The review was expected to be completed in the next few weeks.
22.Some members opined that employers were reluctant to apply under the SLS because existing application procedures were too cumbersome and the percentage of successful cases as compared with the number of applications was very low. They urged the Administration to critically review and improve the scheme so that Hong Kong's economy could benefit from imported labour. Some members nevertheless urged the Administration to take heed of the impact of the SLS on low-income workers who had already experienced negative income growth for the past two years. DS/EM assured members that their views would be duly considered. In reply to a member, DS/EM confirmed that the review was being conducted by an inter-departmental committee with representatives from all relevant Bureaux including the Government Economist.
23.On the countries of origin of the imported workers, DS/EM advised that most of them came from Mainland China. He added that each application was subject to stringent vetting of the LAB and one of the criteria to be met was that the wages offered for a position must not be lower than the median wages for similar jobs in the market.
Date and agenda items for the next meeting
24.As the Panel had completed its deliberations on the five labour-related Ordinances and senior Government officers would not be able to attend the meeting previously scheduled for 25 August 1997, members agreed to hold the next regular Panel meeting on Monday, 22 September 1997 for discussion of the following items :-
- The Administration's proposed way forward for the five labour-related Ordinance; and
- Manpower needs for the construction industry
In respect of (b) above, DS/EM informed members that a working group chaired by him, and comprising representatives from training institutions, trade associations, trade unions, employer associations and relevant Government departments, would examine the issue with a view to recommending ways to satisfy the manpower needs of the industry in the coming years to meet the target of constructing 85,000 flats per annum as pledged by the Chief Executive. The working group would hold its first meeting on 21 August 1997 and a progress report on its deliberations would be provided for members' consideration.
25.The meeting ended at 12:50 pm.
Provisional Legislative Council Secretariat
9 September 1997