LegCo Panel on Manpower
(For Meeting on 3 March 1999)
The Administration's view on the
Right of workers to go on strike or take industrial action
Article 27 of the Basic Law
Article 27 of the Basic Law stipulates that Hong Kong residents shall have "the right and freedom to form and join trade unions, and to strike". In Hong Kong, there is no legislation prohibiting strikes. Employees have the freedom and right to join trade unions and to strike.
2. According to the legal advice we have obtained, the Laws of Hong Kong including the existing provisions of the Employment Ordinance are consistent with Article 27 of the Basic Law. In fact, at its 24th Session on 23 February 1997, the Standing Committee of the National People's Congress adopted the resolution on the ways to deal with the laws previously in force in Hong Kong as stipulated in Article 160 of the Basic Law, taking into consideration the recommendations of the Preparatory Committee for the Hong Kong Special Administrative Region. At that time, the Employment Ordinance (EO) was not listed as legislation in contravention of the Basic Law.
Protection under the EO
3. Under sections 31H, 31X and 32H of the EO, when an employee, who has been given notice by his employer to terminate his contract of employment, takes part in a strike before the expiry of that notice, his rights to severance payment, long service payment or remedies for employment protection will not be affected.
Section 9 and other stipulations relating to the termination of employment contracts under the EO
4. Some people think that section 9 of the EO contravenes the Basic Law and propose to amend the provisions of this section. The Administration does not agree to this proposal. The EO is a very important piece of legislation which lays down provisions on the protection of employees' rights and benefits. Sections 6 to 10 under Part II of the EO provide for the termination of employment contracts.
5. Under sections 6 and 7, an employer or an employee may terminate a contract of employment by giving notice or payment in lieu of notice to the other party. Only under the situations stipulated in section 9 can an employer terminate a contract of employment without notice or payment in lieu. These situations include:
If the employee, in relation to his employment:
- wilfully disobeys a lawful and reasonable order;
- misconducts himself;
- is guilty of fraud or dishonesty; or
- is habitually neglectful in his duties.
In the booklet "A Concise Guide to the Employment Ordinance" published by the Labour Department, it is expressly stated that summary dismissal is a serious disciplinary action and should only be applied to cases where an employee has committed very serious misconduct or fails to show improvement after the employer's repeated warnings.
6. Section 9 of the EO does not provide that an employer may dismiss an employee without notice or payment in lieu on the ground that the employee has participated in strikes or taken industrial actions. Whether an employer can dismiss an employee without notice or payment in lieu under section 9 depends on the facts and circumstances of individual cases. If the two parties have dispute as to whether the dismissal is justifiable under section 9, the onus of proof rests with the employer. The court will consider carefully the facts and circumstances of the case and make a ruling.
7. In fact, the provisions of section 9 are closely related to those of sections 6, 7, 8 and 10. These provisions specify the period of notice or compensation to be given by one party to the other party when the contract of employment is terminated by the employer or the employee. Section 10 specifies the circumstances where an employee may terminate his contract of employment without notice or payment in lieu. An employee may do so if -
- he reasonably fears physical danger by violence or disease; or
- he is subjected to ill-treatment by the employer.
8. Therefore, the provisions of section 9 of the Employment Ordinance are not pertinent to the question of whether employees have the right to strike, and do not affect the application of Article 27 of the Basic Law.
Exercising the right to strike and handling cases of strikes
9. In general, employees in Hong Kong resolve labour disputes through negotiation and consultation with employers and will not easily resort to strikes. However, they will go on strike or take other industrial actions when necessary. According to the records of the Labour Department, there were 9 cases of strikes in 1995, 17 cases in 1996, 7 cases in 1997 and 8 cases in 1998. During these four years, the average number of working days lost due to strikes per year was only 0.5 day per 1,000 wage earners and salaried employees, and Hong Kong is one of the places in the world with the lowest record of working days lost due to strikes. For these cases, the Labour Department received no complaints from the employees that they were dismissed by the employers under section 9 of the EO on the ground that the employees had participated in strikes or taken industrial actions.
10. In fact, whenever employees go on strike or take industrial actions, the Labour Department provides conciliation service to assist employees and employers to resolve the dispute. If both parties cannot reach a settlement on statutory or contractual rights and benefits, the case may be referred to the Labour Tribunal or the Minor Employment Claims Adjudication Board for adjudication.
11. Moreover, in accordance with the Labour Relations Ordinance (LRO), if ordinary conciliation fails to settle the dispute, the Commissioner for Labour may take other actions which include appointing a special conciliation officer to conduct special conciliation or a mediator or a board of mediation to mediate the dispute.
12. Since the LRO came into operation in 1975, the Commissioner for Labour has appointed special conciliation officers under the LRO only in two labour disputes, both of which were settled amicably through special conciliation. So far, there is no need for the Government to invoke other provisions of the LRO in dealing with labour disputes.
13. The experience of the Labour Department in handling labour disputes involving strikes or industrial actions is that employers, employees and trade unions have adopted a pragmatic and calm approach to resolve their differences. Most of the time, they were able to reach an agreement of settlement through conciliation of the Labour Department.
The Administration's position
14. Hong Kong residents have the right and freedom to form and join trade unions and to strike. Such right and freedom are protected constitutionally by Article 27 of the Basic Law, and there is no legislation in Hong Kong prohibiting people to strike. Hong Kong laws including the Employment Ordinance have not breached the provisions of Article 27 of the Basic Law. In fact, people have the right to strike. Past experience shows that Hong Kong employees have already exercised their right to strike. In the past few years, labour disputes involving employees' strikes or industrial actions have been resolved through conciliation of the Labour Department and the Department has not received any complaints from employees about dismissal by employers under section 9 of the EO on ground of their participating in strikes or taking industrial actions. The Administration, therefore, does not consider that it is necessary to amend the EO at this stage.
15. As a matter of fact, many unnecessary conflicts and disputes can be avoided if employers and employees strengthen mutual communication. In order to strengthen promotion of labour-management communication, the Labour Department set up the Workplace Consultation Promotion Unit in April 1998 to promote effective communication, direct dialogue and voluntary negotiation between employers and employees on employment matters. At the present time of economic difficulties, harmonious labour relations are all the more important. Therefore, we hope that if there is a labour dispute, employers and employees should settle their differences in the spirit of compromise and cooperation instead of resorting to drastic actions so as to safeguard the overall economic and social interests of Hong Kong.
Education and Manpower Bureau