LegCo Panel on Manpower
(For Meeting on 24 June 1999)
Administration's Position on the Right to Strike
At the meeting of the LegCo Panel on Manpower held on 27 May 1999, Members discussed the paper on right to strike and requested the Administration to respond to and/or clarify certain points.
The Administration's Views
2. After having taken legal advice, the Administration's responses are set out as follows:
(a) Whether, in the view of the Administration, section 21B of the Employment Ordinance (EO) contravenes Article 27 of the Basic Law (BL)
3. Article 27 of the BL guarantees an employee's right to strike. As taking part in a strike would not of its nature be an activity undertaken outside working hours or with the consent of the employer, it is clear that
"strike" is not intended to be covered under section 21B of the EO as a form of trade union activities. Therefore, section 21B of the EO has no effect on the employee's right to strike and does not contravene Article 27 of the BL.
(b) The timing for introducing amendments to sections 9, 31H, 31X and 32H of the EO
4. We will seek the advice of the Department of Justice (D of J) shortly on how best to tidy up the existing wordings of sections 9, 31H, 31X and 32H of the EO. In the light of the D of J's advice, we will consult the Labour Advisory Board on the proposed amendment as soon as possible.
(c) Whether civil servants are covered by Article 27 of the BL in respect of the right and freedom to form and join trade unions and to strike
5. Civil servants do enjoy the right and freedom to form and join trade unions and to strike as guaranteed under Article 27 of the BL. Such right and freedom are also guaranteed by the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and International Labour Convention which are applicable to Hong Kong by virtue of Article 39 of the BL. However, lawful restrictions may be imposed on the exercise of these rights and freedom. There must be reasonable justifications for the imposition of such restrictions on the grounds specified under the Covenants and Convention and in accordance with the principles of proportionality and rationality.
(d) The definition of "strike"
6. Section 2 of the EO provides that "strike" has the same meaning assigned to it by section 2 of the Trade Unions Ordinance (Cap.332).
7. Under section 2 of the Trade Unions Ordinance, "strike" means "the cessation of work by a body of persons employed acting in combination, or a concerted refusal, or a refusal under a common understanding, of any number of persons employed, to continue to work for an employer in consequence of a dispute, done as a means of compelling their employer or the employer of any other person or body of persons, or any person or body of persons employed, to accept or not to accept terms or conditions of or affecting employment".
(e) Statutory protection for an employee who takes part in a strike
8. With the coming into effect of the Basic Law which expressly guarantees the right to strike, a reasonable interpretation of section 9 of the EO is that an employer cannot dismiss an employee summarily under this section on the ground of his taking part in a strike. Also, the continuity of employment of a worker who goes on strike is preserved under the First Schedule of the EO. According to our legal advice, a worker who goes on strike, in the absence of contractual provisions to the contrary, may not be entitled to wages for the period over which no service has been rendered. However, in line with the above interpretation of Section 9, an employee's entitlement to the other benefits and protection accorded by the EO will not be derogated by the fact that he takes part in a strike.
Education and Manpower Bureau
22 June 1999