Interim Report - Report No 277, March 1991

Case No 1553 (United Kingdom of Great Britain and Northern Ireland) - Complaint date: 16-OCT-90 - Closed

1. 448. The complaint of the Hong Kong Union of Post Office Employees (HKUPOE), the Hong Kong Postal Workers Union (HKPWU), the Hong Kong Superintendents of Posts Association (HKSPA) and the Postal Workers Branch of the Hong Kong Chinese Civil Servants Association (HKCCSA), hereafter referred to as "the complainants", is contained in a communication dated 16 October 1990. The Government sent its observations in a communication dated 21 January 1991.
2. 449. The United Kingdom has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84) in respect of Hong Kong. It has declared applicable to Hong Kong the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) with modifications, the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Labour Relations (Public Service) Convention, 1978 (No. 151) applicable without modifications.

A. The complainants' allegations

1. 450. The complainants allege that the Hong Kong Government violated Articles 7 and 8 of Convention No. 151 by delaying collective bargaining with the four postal workers' unions representing the majority of the 4,500 postal workers in Hong Kong, and by threatening with dismissal those employees who intended to participate in a sit-in.
2. 451. At a meeting held by over 2,000 postal workers on 28 September 1990, the members decided to hold a sit-in protest outside the General Post Office on 20 October from 8 a.m. to noon, with a view to press forward their demands (shortening of work-week from 48 to 44 hours; raising by three points the starting point of all ranks in the salary scale; improving promotion prospects). The unions concerned have been struggling for these improvements for ten years, during which the Government used tactics of procrastination.
3. 452. The union leaders had a meeting with the Postmaster General but without any concrete result. After that meeting the Postmaster General sent them a letter, dated 12 October 1990, warning that their actions "may invite the imposition of sanctions provided for under Civil Service Regulations and Article XVI of the Letters Patent". Article XVI of the Letters Patent reads as follows:
   • Subject to the provisions of Article XVI A, the Governor may, subject to such instructions as may from time to time be given to him by Us through one of Our Principal Secretaries of State, upon sufficient cause to him appearing, dismiss or suspend from the exercise of his office any person holding any public office within the Colony, or, subject as aforesaid, may take such other disciplinary action as may seem to him desirable.
   • This was the first time the Letters Patent were used to intimidate unions which intended to undertake industrial action. This threat is a violation of Article 8 of Convention No. 151, which has been ratified by the United Kingdom and declared applicable to Hong Kong without modifications.
4. 453. The Postmaster General added in his letter that the pay and working conditions issues were currently reviewed by the Standing Commission on Civil Service Salaries and Conditions of Service, and urged the unions to wait patiently for the results of the review and to consider dropping the sit-in action planned. He concluded by stressing that the postal service is an important public service, that any disruption causing inconvenience to private and business customers would not be viewed sympathetically by the public and the media and would tarnish the good image of the Department and its staff.
5. 454. The complainants further argue that the Government has not installed any machinery, neither conciliation nor arbitration, to settle disputes, and that it has not taken any measure to promote the full development of negotiation between the public authorities and public employees' organisations as required by Article 7 of Convention No. 151. They request that appropriate actions be taken against the Hong Kong Government in that respect.

B. The Government's reply

1. 455. The Government states that the complainants have for some time been pressing it for improved pay and reduced working hours. Their demands have been discussed with the management on several occasions and have been referred to the Standing Commission on Civil Service Salaries and Conditions of Service which is conducting an overall review of the salary structure of all civil servants in Hong Kong. The outcome of the Standing Commission's review was released in early 1991.
2. 456. On 29 September 1990, the unions informed the Postmaster General that they would stage a four-hour sit-in on 20 October to escalate their action. In a letter to the chairmen of the four unions dated 12 October, the Postmaster General urged them to be patient and to consider dropping the industrial action. In the event, the unions decided to cancel the sit-in but staged a protest march on 4 November to Government House.
3. 457. The Government submits that measures, appropriate to Hong Kong's conditions, have been adopted to promote and encourage the development of machinery for consultation and voluntary negotiation in determining the terms and conditions of employment of civil servants. The machinery operates at both central and departmental levels. Service-wide issues concerning the terms and conditions of employment of all civil servants are dealt with by the Standing Commission on Civil Service Salaries and Conditions of Service and the Standing Committee on Disciplined Service Salaries and Conditions of Service. These provide independent and impartial advice on those matters. At the departmental level, formal consultative committees have been set up whereby civil servants may, either individually or through their unions, discuss with the management matters of mutual concern. So far as the Hong Kong Post Office is concerned, the Departmental Consultative Committee is attended by over 20 staff representatives who meet every month with the management to discuss operational and staff welfare matters. In accordance with Article 8 of the Convention, it is the policy of the Hong Kong Government to resolve civil service disputes through frank and direct dialogue between management and staff.
4. 458. The Government also challenges any claim that use of the Civil Service Regulations and Article XVI of the Letters Patent would represent a violation of ILO Convention No. 151. In the event of disruption of service, the administration has a responsibility to invoke civil service regulations to ensure that services to the public are maintained. The Letters Patent establish the basic framework for the administration of the territory. Article XVI provides a source of power exercised by the Governor through the Secretary for the Civil Service to establish and manage the Civil Service. It does not serve to deter industrial action organised by the unions.
5. 459. Describing the latest developments, the Government states that, after the protest march on 4 November, the HKPWU and the Postal Workers Branch of the HKCCSA informed the Postmaster General that their members would refuse to work overtime from 29 November to 1 December. The HKUPOE also declared that its members would refuse to work overtime from 29 November to 6 December. The Postmaster General held further meetings with the unions on 28 November and explained once again all the positive action that had been or was being taken by the Department on the various requests made by the unions and again urged them to consider dropping the industrial action. After the meeting, the HKUPOE decided to call off all industrial action and to wait for the outcome of the overall review by the Standing Commission. Although the HKPWU and the Postal Workers Branch of the HKCCSA persisted with their claim not to work overtime, they also made it clear that there would be no further industrial action prior to the outcome of the overall review. These subsequent developments demonstrate that the current procedures for settling disputes and determining terms and conditions of employment are operating effectively. The Government would therefore suggest that the postal workers unions' allegations are clearly unfounded. The Post Office management will continue to maintain regular dialogue with the unions regarding operation and pay and conditions of service matters.

C. The Committee's conclusions

1. 460. The complaint in this case raises two issues: the remarks made by the Postmaster General on measures that could be taken against workers who intended to take industrial action; and the alleged absence of appropriate collective bargaining and dispute settlement machinery in the public service.
2. 461. As regards the first issue, the Committee considers that the contents of the Postmaster General's letter of 12 October 1990 represented a threat against the workers who had expressed their intention to hold a sit-in in order to bring pressure on the employer in their negotiations. Even though no administrative or disciplinary measures appear to have been taken under the Civil Service Regulations or Article XVI of the Letters Patent, the mere fact that such threat existed could be a powerful deterrent for the workers concerned, particularly in view of the broad and discretionary language of Article XVI which provides for severe penalties: "The Governor may ... dismiss or suspend from the exercise of his office any person holding any public office within the Colony or ... may take such other disciplinary action as may seem to him desirable" (emphasis added). The Committee considers that the use made of the Letters Patent by the Government in this case is contrary to the principles of freedom of association.
3. 462. The Committee and the other ILO supervisory bodies have always recognised that the right to strike in its different forms (including the sit-in), as long as it is exercised peacefully, is one of the essential means through which workers and their organisations may promote and defend their economic and social interests (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, paras. 362, 363 and 367). It follows that restrictions or even prohibitions of the right to strike can only be justified in a limited number of situations: civil service - civil servants being those who act as agents of the public authorities - or workers in essential services in the strict sense of the term, i.e. those services whose interruption would endanger the life, personal safety or health of the whole or part of the population (Digest, para. 387), provided however these workers have access to adequate procedures, such as conciliation and arbitration, where the parties concerned can participate at all stages and in which the awards are binding on both parties and are fully and promptly implemented, in order fully to safeguard the interests of the workers thus deprived of an essential means of defending their occupational interests.
4. 463. The Postmaster General, in his letter of 12 October 1990 to the union leaders, stressed that the postal service is an important public service, the interruption of which would cause inconvenience to private and business customers and would tarnish the good image of the Department and its staff. The Committee recalls in that respect the comments it made in a recent case involving a postal strike: "... the Committee fails to see how postal services could be said genuinely to constitute essential services in the strict sense of the term. It is true that businesses will experience problems and losses during a postal strike, and may even have to lay off employees; companies relying heavily or exclusively on the mail - such as direct mail undertakings - will be particularly affected by such a strike. It is equally true that some individuals, who depend on mail delivery to obtain their unemployment benefits, old-age pension, family or social allowance cheques, will be inconvenienced. Nevertheless, unfortunate as these consequences are, they cannot justify an abridgement of the fundamental rights guaranteed by Conventions Nos. 87 and 98, unless they reach the point where they affect the life, personal safety or health of the whole or part of the population ..." (268th Report, Case No. 1451 (Canada), para. 98).
5. 464. The Committee therefore considers that by threatening retaliatory measures against workers who, at that time, had merely expressed their intention to hold a sit-in in pursuance of their legitimate economic and social interests, the employer interfered in the workers' basic right to organise their administration and activities and to formulate their programmes, contrary to Article 3 of Convention No. 87. The Committee calls on the Government, in the future, to refrain from making such threats against workers and their organisations entitled to strike.
6. 465. Concerning the second issue, namely the alleged absence of appropriate collective bargaining machinery, the Government submits that the employment terms and conditions of civil servants are dealt with at the central level (Standing Commission on Civil Service Salaries and Conditions of Service), and within the various departments (in the present case, the Departmental Consultative Committee). On the other hand, the complainants allege that the Government has not established conciliation or arbitration procedures to settle disputes, nor taken any measure to promote the full development of negotiation between the authorities and public employees' organisations. On a more specific point, the complainants submit that, for the last ten years, the Government used tactics of procrastination on these bargaining issues.
7. 466. The Committee recalls the importance which it attaches to the principles that both employers and trade unions should bargain in good faith and make every effort to conclude agreements, and that satisfactory labour relations depend primarily on the attitudes of the parties towards each other and on their mutual confidence (Digest, loc. cit., para. 590). In addition, Article 8 of Convention No. 151 provides that the settlement of disputes must be sought "... through negotiation between the parties or through independent and impartial machinery, such as mediation, conciliation and arbitration, established in such a manner as to ensure the confidence of the parties involved". That element of confidence is clearly lacking here, since the complainants allege that they have been asking improvements in their working conditions for ten years, without results.
8. 467. However, the Committee does not have all the necessary information on that aspect of the case, as regards both the legislative framework (i.e. whether or not the provisions concerning the settlement of disputes are in conformity with Convention No. 151 and other Conventions on freedom of association) and the results of the 1990 negotiations for the postal workers (the Government stated that the outcome of the Standing Commission's review was released in early 1991, but the Committee has not been informed of the unions' opinion in that respect). The Committee requests both parties to provide further information on these two aspects of the case.

The Committee's recommendations

1. 468. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee considers that the use made of the Letters Patent by the Government in this case is contrary to the principles of freedom of association. It also considers that by threatening retaliatory measures against workers who had expressed their intention to take industrial action in pursuance of their legitimate economic and social interests, the Government interfered in the workers' right to organise their administration and activities and to formulate their programmes, contrary to Article 3 of Convention No. 87. The Committee calls on the Government, in the future, to refrain from making such threats.
   • (b) The Committee requests both parties to provide further information on the legal provisions concerning the settlement of disputes in the public service, and on the outcome of the review of working conditions in the civil service, released in early 1991 by the Standing Commission.