Cathay unauthorized strikes

[Ex Douglas Driver]

Hong Kong Basic Law

CX seems to be taking the position that as the dispute is not between them and their staff directly, they view taking part in a general strike as illegal. The question becomes “is this an action sanctioned by the various CX staff unions?”, as the EO allows for union sanctioned activities and makes no requirement of a dispute between the employer/employee.
The HKAOA has made their position on this strike clear however.

Article 27
Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.

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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:-

1. the right to be or to become a member or an officer of a trade union registered under the TUO;
2. 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
3. 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.