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            Employment and Business Immigration Law

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            Employment and Business Immigration Law

            Is the right to strike in Hong Kong absolute?

            By Jade Tang

            Under the outbreak of the coronavirus, there have been strike actions of hospital staff in Hong Kong to demand full closure of Hong Kong’s borders with mainland China陕西福彩app下载. The strike actions finally ended on February 7th following the voting of the hospital staff against the extension of the strike.

            In the wake of the strike, there has been much discussion on whether the hospital staff have a right to strike, and what follow-up actions may be taken by the Hospital Authority (“HA”) against them.

            Legal context of strike actions  

            Article 27 of Hong Kong's Basic Law states: "Hong Kong residents shall have freedom of speech… and the right and freedom to form and join trade unions, and to strike."

            The Employment Ordinance prohibits an employer from summarily dismissing an employee who takes part in a strike[1].  It further mandates that an employee's continuous employment is intact if the individual is absent from work for the whole or part of any hour because of a strike, as long as the strike is legal[2].

            Restrictions on the right

            The right to strike, just as other freedoms and rights enshrined in the Basic Law, is subject to restrictions. Article 39 of the Basic Law provides that the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law.

            This results in 2 tests to be applied:

            1. Is a restriction prescribed by law; and
            2. Does it meet the requirements of the Bill of Rights, which lays out the limits on the restrictions?

            The limit to the restriction on right to strike, as set out in Article 16 of the Bill of Rights, is that the restriction has to be provided by law, necessary for respect of the rights or reputations of others; protection of national security or of public order, or of public health or morals.

            As such, if employers wish to limit the right of its workers to join a strike legally organized by a labor union, it should take care to ensure the limitations it imposes satisfy the above requirements.

            Rights of employers and employees

            There may be some confusion as to whether or not employers can take action against employees for participating in strikes.

            Under the Trade Unions Ordinance, a strike is defined as “the cessation of work… in consequence of a dispute, done as a means of compelling their employer … to accept or not to accept terms or conditions of or affecting employment”.

            In other words, if the employees are protesting about issues that do not relate to the terms and conditions of his employment, any cessation of work arising thereof may not be qualified and protected as a strike under the Trade Unions Ordinance.

            In 2000, certain pilots of Cathay Pacific in a registered trade union carrying out industrial action protesting against their rostering practices and contract entitlement. It was held that industrial action was within the definition of activities of a trade union, and thus protected by statute. As a result, termination of these pilots’ employment by Cathay Pacific was found to be in breach of the Employment Ordinance[3]

            Taking the recent strike by hospital staff as an example, the participants were reportedly lobbying for full closure of the HK-China陕西福彩app下载 borders.

            On one hand, the hospital staff may have a valid argument pertaining to their conditions of work, that the opening of HK-China陕西福彩app下载 borders could cause hospitals in Hong Kong to be overwhelmed by a surge in coronavirus cases as mainland Chinese seek to use Hong Kong healthcare system.

            As such, it would increase the hospital staff’s workload as well as risk of exposure to the virus, which will potentially pose harm to their health and wellbeing.

            On the other hand, it may also appear to some that the “strike” was not targeted at HA as an employer, but the broader government instead. It may also be said that the executive policy relating to border control is not materially related to the terms and conditions of hospital staff under HA’s employment.

            It is therefore for the Hong Kong court, if the matter is to be brought up to legal proceedings, to decide if the hospital staff’s cause is or is not related to the terms and conditions of employment or their work in a public hospital.  If the court does not find a rightful cause of the action, the hospital staff’s action would not be legally classified as a “strike” under the Trade Unions Ordinance, which means HA can in principle take action against their absence from work in accordance with its internal disciplinary procedures.

            The abovementioned protections under EO would therefore not be available to the participants of the “strike” either.  The writer does not know if HA may take this matter any further but believes that it is a matter of both employment and also political concern under the present circumstance, while everyone is still trying to battle against the outbreak of coronavirus.

            Discussion

            For pure legal discussions, in the event that the recent strike action by the hospital staff is found to be co-related to the terms and conditions of their employment, the next issue is whether any restriction on their right to strike is prescribed by law and at the same time necessary for the protection of some legitimate interests.

            To define the reach of necessity, the proportionality test has to be applied[4]. A restriction will be proportionally justified, when it is connected to a legitimate purpose, and when it does not intervene in the right more than necessary to accomplish that purpose.

            Some have argued that to impose a restriction on the hospital staff’s right to strike is connected to the legitimate purpose of protection of public health. The natural consequence of their strike would be reduction of staff at work in the hospitals, decreasing the quality of care provided to patients and adversely affecting the public healthcare system in Hong Kong. Public order, which includes the common welfare and collective needs of the community[5], will also be affected.

            If this argument stands, any such restriction would have to be no more than necessary in protecting public health and wellbeing. In imposing any restriction on right to strike, the HA, and indeed employers in general, should be mindful of this issue.

            Where employees are of the view that their fundamental rights have been infringed upon, Article 35 of the Basic Law provides that Hong Kong residents have the right to judicial remedies, which includes raising a judicial review.     

            Balancing the rights of employees and employers

            In view of the above illustration of example, when considering a strike action, employees and trade unions should be aware of the requirements on and legitimate causes of strikes for such to be protected under relevant laws.

            Meanwhile, employers should recognize employees’ fundamental right to strike as described above.  If a strike does happen, an employer should consider not only the employees’ legal right to strike, but also how to balance the collective interests of employees and other stakeholders of the employing company as well as public interest, if it is a matter of concern.

            The rights and freedoms of the residents of Hong Kong are not absolute under the Basic Law. The laws discussed were drafted with a view to protecting and strike a balance between individual rights, public welfare and collective interests of the society as a whole.

            If you have any question regarding the topic discussed or on other employment issues, please contact [email protected].

            This article is for reference only. Nothing herein shall be construed as any formal legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

            [1] Section 9(2), Employment Ordinance.

            [2] Para 4(a), First Schedule, Employment Ordinance.

            [3] Blakeney-Williams v Cathay Pacific Airways Ltd (2012) 15 HKCFAR 261

            [4] Leung Kwok Hung v HKSAR [2005] 3 HKLRD 164, paras 182 & 185

            [5] Wong Yeung Ng v. Secretary for Justice [1999] 2 HKLRD 293, (CA)

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