One of the most important sectors in which HKCTU is organising workers and fighting for workers' rights is the transport industry. HKCTU currently has 17 affiliates in the transport sector, with a membership of more than 10,000 workers. Twelve of these unions are affiliated to the Federation of Hong Kong Transport Worker Organisations (FTO), an umbrella federation within HKCTU. Approximately 80% of FTO members are drivers, while the other 20% work in the mass transit railway, toll-ways, cross-harbour tunnels, and maintenance services.

With 115,000 goods vehicles (including 39,000 medium and 3,000 heavy goods vehicles) registered in Hong Kong, there is a high density of commercial transport in the territory, with an overall vehicle density of 272 vehicles per kilometre of road. In addition to this, there is intensive cross-boundary transportation between the Hong Kong SAR and mainland China, with more than 13,000 Hong Kong -registered container trucks crossing the border every day.

The main challenges for the FTO and its members concern working hours, wages and the problem of 'self-employment' status.

Recent union surveys show that 70% of drivers work more than 10 hours a day, six to seven days a week. These excessive working hours account for a high rate of accidents involving commercial vehicles. Every year there are 15,000 road accidents of which 5,000 involve commercial goods vehicles and 3,000 involve buses. Goods vehicle accidents have the highest rate of fatalities, with 41% of all traffic fatalities involving drivers of goods vehicles.
As an affiliate of the International Transport Workers' Federation (ITF), the FTO is actively involved in the ITF's global 'Fatigue Kills!' campaign against excessive working hours.

The FTO's survey data shows that 90% of container truck drivers who are members of the union support the need for restrictions on working hours. However, most truck drivers in Hong Kong believe that long hours are a "tradition" in the industry that cannot be changed. The reality is that low wages force drivers to work excessive hours to earn a reasonable income. That is why the union links the campaign for reduced working hours with the need to increase wages and implement wage reforms. Legislating for restricted working hours can only prevent overwork and benefit drivers if wage levels are raised.

Currently there are four kinds of payment system in the transport industry: fixed wages and benefits; payment by commission; piece-rates and self-employment. Commission-based remuneration is calculated as a percentage of the retail value of goods transported. For example, the cross-boundary (Hong Kong SAR-mainland China border) drivers are paid a percentage of the sales value of goods transported. Piece-rates are more common in the container terminals, where drivers are paid according to the number of container 'boxes' transported during each journey.

Based on a survey of union members' opinions, the FTO released a report in August on actual working hours and wages in comparison to ideal working hours and wages. The majority of union members established an ideal limit of 9 hours per day and a decent wage of HK$15,000 (US$1923) per month. Following the release of this report the FTO has used the benchmark of 9 hours/day and HK$15,000/month as the maximum hours and minimum wage in its campaign. These indicators are used to lobby the Transport and Labour Departments for laws on maximum working hours, as well as in wage bargaining with employers.

Another critical problem facing the union concerns the management strategy of using 'self employed' status. Self-employment is a common - and increasingly widespread - system that has significant effects not only on wages and working conditions, but also on worker and trade union rights.

Often drivers are denied employment contracts or are forced to sign commercial contracts that establish their relationship to the company as a 'commercial' and not an employment relationship. Drivers are also forced to hold a commercial license and to drive the company's vehicle as a separate 'company' not an employee. As such the employer can escape minimum requirements imposed by labour laws, including work-related accident insurance and compensation for work-related injuries. The majority of drivers must instead purchase their own insurance. On the other hand, the employer can seek compensation from drivers for any damage to vehicles.

The additional benefit to employers of cross-border drivers in using this 'self-employed' management strategy is that under mainland Chinese law employers must take 70% responsibility and drivers 30% for damage or injury caused in traffic accidents. If drivers are 'self-employed' then the employer escapes any legal responsibility. So employers are using drivers' 'self-employed' status to avoid labour laws in Hong Kong and traffic laws in mainland China.

When a labour dispute arises between truck drivers and their employers, the Labour Tribunal can reject their case as a 'commercial dispute' and not a labour dispute. In fighting for drivers' claims union organisers must prove that it is really an employee-employer relationship. Only then can workers rights and claims guaranteed in labour laws be applied.

There are 11 benchmarks used by the Labour Tribunal to determine whether the relationship between the driver and vehicle owner is an employment relationship or a commercial relationship. The Labour Tribunal judge asks the driver a series of questions using these benchmarks, and the driver must prove s/he is an employee. For example, if the employer has full control over working hours and conditions then an employment relationship is proven. If the driver is not allowed to undertake any other business using the vehicle then the driver is not really self-employed. Whether the payment system is fixed or flexible is another factor. The more fixed the pay system the more likely it is an employment relationship.

The union deals with half a dozen cases every month in which union organisers must first prove that drivers are not 'self-employed' before being able to pursue workers' rights in a labour dispute and make claims under the labour law.

More than 70 per cent of container truck drivers are 'self-employed.'

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