14 March, 2018
The recent strike to protest against the salary adjustment policy by some of the drivers of KMB (one of the bus companies in Hong Kong) hit the headlines. According to the press, KMB after the strike terminated the employment of four bus drivers who initiated the strike (“Bus Drivers”).
The grounds of termination were that the Bus Drivers committed a serious breach of rules by abandoning their posts, ceasing to drive, and thus threatening passengers’ safety. It was reported that the Bus Drivers appealed against the decision of the disciplinary proceedings following which KMB decided to reinstate the Bus Drivers pending the appeal.
There have been many discussions as to whether KMB has the right to terminate the Bus Drivers.
What are the rights of employees and employers in industrial actions?
The Employment Ordinance (Cap. 57) (“EO”) prohibits an employer from summarily dismissing an employee (i.e. termination without notice or payment in lieu of notice) on the ground that he/she takes part in a strike. However, there does not seem to be any prohibition against an employer from terminating the employment of such employee by serving notice or by making payment in lieu of notice.
Further protection is afforded to employees who form and join trade unions to protect their rights.
The Hong Kong Bill of Rights Ordinance and International Covenant on Civil and Political Rights protect the right and freedom to form and join trade unions. The above, as well as the right and freedom of Hong Kong residents to strike, are enshrined in the Basic Law. The Trade Unions Ordinance (Cap. 332) (“TUO”) also safeguards various rights of registered trade unions.
The EO codifies the rights of employees in respect of trade union membership and activities. Under section 21B of the EO, every employee shall as between himself and his employer have the following rights:
- the right to be or to become a member or an officer of a trade union registered under the TUO;
- where he/she is a member or an officer of any such trade union, the right, at any appropriate time, to take part in the activities of the trade union; and
- the right to associate with other persons for the purpose of forming or applying for the registration of a trade union in accordance with the TUO.
It is a criminal offence for an employer or any person acting on behalf of an employer to (a) prevent or deters, or does any act calculated to prevent or deter, an employee from exercising any of the rights conferred on him set out above; or (b) terminate the employment contract of, penalises, or otherwise discriminates against, an employee by reason of his/her exercising any of the above rights.
In this KMB incident, it appears that the Bus Drivers are not members of any trade union because it was reported in the news that the Bus Drivers were only planning to form or in the course of forming a trade union. In addition, it is uncertain as to whether the Bus Drivers took part in the strike at an appropriate time. Under the EO, the term “appropriate time” means, in relation to an employee taking part in any activities of a trade union, time which either (a) is outside his working hours; or (b) is a time within his working hours at which, in accordance with arrangements agreed with or consent given by or on behalf of his employer, it is permissible for him to take part in those activities.
In Blakeney-Williams v Cathay Pacific Airways Ltd (2012) 15 HKCFAR 261, certain pilots of Cathay Pacific Airways Ltd (“Cathay”) who were in a registered trade union carried out industrial action protesting against their rostering practices and contract entitlement. Cathay terminated the employment of some of these pilots but such termination was ruled to have breached the EO by violating the pilots’ rights to join a registered trade union and to take part in the union’s activities. It was held that industrial action was within the definition of “activities of the trade union” and thus protected under the EO.
For further information, please contact:
Elsie Chan, Partner, Deacons
elsie.chan@deacons.com.hk
