Enacting legislation on the right to collective bargaining  (2013/06/05)

Deputy President, in the face of inflation and provided that enterprises can maintain making regular revenues, I believe most employers will be willing to meet the reasonable requests for pay rise and better benefits made by employees, so as to share the fruits of the company with them. This is one of the major factors enabling Hong Kong to maintain its competitiveness in the market.

The right to collective bargaining is a complicated issue. Under the International Labour Organization (ILO), there are mainly two conventions dealing with collective bargaining, namely the Right to Organize and Collective Bargaining Convention, 1949 (No. 98) and the Collective Bargaining Convention, 1981 (No. 154). After all these years and to date, member states are only encouraged but not mandatorily required to implement the requirements in the two conventions. The specific version to be implemented depends on the laws of the member states concerned, and other mechanisms achieving settlement and arbitration will not be ruled out.

Systems on collective bargaining have been implemented in certain developed countries. However, the types of system, the level and course of bargaining and the requirements on the right to representation vary in different countries. Due to the significant differences between these countries and Hong Kong in terms of economic condition, foundation of trade unions, types of trades and labour structure, those systems cannot be introduced into Hong Kong direct. In Hong Kong, employers and employees are all along encouraged and urged to deal with problems relating to labour relations through negotiations.

Deputy President, some consider it acceptable to formulate a system for the right to collective bargaining at the central, trade and enterprise levels. It is an extremely idealistic proposal. In reality, none of the countries implementing a system for collective bargaining can achieve complete coverage in these three levels. In Japan, trade unions of enterprises are the mainstay, and thus the principle of "one enterprise, one union" is implemented, where collective bargaining is carried out mainly at the enterprise level. In Germany, collective bargaining is carried out mainly between industrial trade unions and employers' associations. Under the three-tier system of collective bargaining, which cases require mediation at the central level, which cases can only be solved within an enterprise and which cases can only be handled by industrial representatives in order to protect the interest of both employers and the employees? It involves a lot of disputes merely in the division of work and decision on the degree of participation at various levels of which the conflicts are to be dealt with.

As for the right to representation in bargaining, if there are two trade unions or more in an enterprise or an industry, which trade union should be appointed as the representative in the bargaining? In the United States and the United Kingdom, the right of exclusive representation is adopted, where the trade union with the right to represent the majority of employees will have the right to appoint a representative to carry out collective bargaining. Come to imagine that, when various trade unions are holding different views, individual trade unions may by all means entice employees to join them so as to get the right to representation, trade unions may even put forth demands which the employers can in no way accede. Negotiations between employers and employees may be caught in a deadlock and trade unions may split up. In such circumstance, how can trade unions objectively represent employees in the bargaining? Employees can hardly decide which trade union is sincerely acting for their good, for the bargaining may be reduced to a tool for politics.

Deputy President, in collective bargaining, employees of large and medium enterprises and public organizations are the major targets. According to the Department of Labour and the Court of the United States, given the passive status of employees in the access to information on financial status, and so on, trade unions have the right to request employers to provide all information, except confidential information, to ensure that both sides are on an equal footing in the course of bargaining. If employers fail to provide information on the actual situation promptly, it will be taken as a refusal to bargain and employers have to bear the legal liability. The legislation puts employers in a dilemma. On the one hand, they will contravene the law if they do not provide the information. On the other hand, business secrets of the company may be leaked if they provide the information accordingly, and in the event of incurring losses, who should be held responsible?

From the economic perspective, if the implementation of the system for collective bargaining is not handled properly, it will reduce the flexibility of enterprises and industries, increase their cost and undermine the investment desire of foreign investors, thereby adversely affecting the business environment in Hong Kong. Particularly in view of the uncertainties of the global economy, we should learn a lesson from the experience of Europe, where the labour movements over the years have caused society to pay an expensive price and affected its competitiveness. I have reservations about enacting legislation on the right to collective bargaining.

Recently, we have been involved in constant disputes over standard working hours. If the implementation of the right to collective bargaining is also put on the table, the situation will become even more complicated. The Government needs to examine the issue seriously, handle it cautiously and conduct comprehensive and careful assessments.

Deputy President, I so submit.