LegCo Panel on Manpower
(For Meeting on 27 May 1999)
Administration's Views on Whether or Not
Sections 9, 31H, 31X and 32H of the Employment Ordinance
Contravene Article 27 of the Basic Law
Article 27 of the Basic Law, which provides among other things that Hong Kong residents shall have "the right and freedom to form and join trade unions and to strike". Subsequent to the discussion at the meeting of the Legislative Council Panel on Manpower held on 3 March 1999 on workers' right to strike, the Administration has carefully examined whether or not sections 9, 31H, 31X and 32H of the Employment Ordinance (EO) (Cap. 57) contravene BL 27 again.
The Administration's View
2. After re-examining sections 9, 31H, 31X and 32H of the EO, the Administration would like to reiterate that these sections do not contravene Article 27 of the Basic Law. The reasons for the Administration's view, which is based on legal advice, are set out as below.
Interpretation of section 9 of the Employment Ordinance
3. The EO lays down provisions for the protection of employees' rights and benefits. Section 9 stipulates the situations under which an employer may terminate a contract of employment summarily, without notice or payment in lieu.
4. At common law, participation in a strike by a worker may involve a breach of contract which may render the worker liable to summary dismissal. Hence, before the coming into effect of the Basic Law, although participation in a strike is not expressly included as a ground for summary dismissal under section 9, it appears to be possible for an employer to dismiss an employee by relying on the common law ground of a strike as a breach of contract pursuant to section 9(a)(i), (ii) and/or 9(b).
5. With the coming into effect of the Basic Law which expressly guarantees the right to strike, the Administration takes the view that a reasonable interpretation of section 9 is that the lawful exercise of the right to strike by an employee would not amount to misconduct or wilful disobedience of a lawful and reasonable order on his part and that the common law ground of strike as a breach of contract justifying summary dismissal would be obsolete on the ground that it is inconsistent with the right to strike as guaranteed under the Basic Law.
Interpretation of sections 31H, 31X and 32H
6. Sections 31H, 31X and 32H provide that if 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 the notice, he would still be entitled to severance payment, long service payment and the remedies for employment protection under the EO. The provisions aim at giving protection to an employee of the statutory entitlements under the special circumstances of a strike.
7. The query concerning sections 31H, 31X and 32H of the EO is whether the wordings of those provisions suggest that an employer is entitled to dismiss an employee without notice or payment in lieu i.e. in accordance with section 9 of the EO for taking part in a strike and, if so, whether those provisions contravene Article 27 of the Basic Law which guarantees that Hong Kong residents shall have the right to strike.
8. As mentioned in para 5 above, a reasonable interpretation of section 9 of the EO in the light of Article 27 of the Basic Law is such that it could not be invoked as a ground for summary dismissal of an employee for taking part in a strike. The relevant wordings of sections 31H, 31X and 32H would be rendered meaningless/redundant if this interpretation of Article 27 is adopted. There is thus no question of those provisions contravening the Basic Law.
9. As the provisions of sections 31H, 31X and 32H of the EO do not contravene the Basic Law, there is no need for these provisions to be amended to bring them in line with Article 27 of the Basic Law.
Education and Manpower Bureau