In the lead-up to the citywide walkout in Hong Kong on 5 August and in early September, we received a large number of questions from our clients in relation to how they should manage their workforce.
The protests and rallies show no signs of slowing down and it is expected that there will be further calls for citywide walkouts/ strikes in coming months. In anticipation of this, we have collated a number of high-level FAQs below to help employers navigate this period of uncertainty.
1. What does the law say about the right to strike (if anything)?
In Hong Kong, the freedom to strike is protected under the Basic Law and the Employment Ordinance. Article 27 of the Basic Law provides that “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". However, the Basic Law stops short of setting out what the protections are and how they are applied.
The Employment Ordinance also offers certain protection to employees who go on strike, including protection against summary dismissal, which is the termination of employment without notice or payment in lieu of notice.
Importantly, “strike” is defined under the Trade Unions Ordinance as the cessation of work in consequence of a dispute and done as a means of compelling the employer to accept or not to accept terms or conditions of or affecting employment. In other words, the citywide walkout on 5 August (and any strike where the motive is not to fight for terms and conditions of or relating to work) will not be protected under the Employment Ordinance.
2. Is it unlawful for an employee to participate in a strike?
It depends. If an employee participates in a strike by staying at home, this is not unlawful. It may be a breach of company policy or the terms and conditions of employment if the absence from work has not been approved by the employer. Some employees may therefore choose to take a day of annual leave in order to participate in a strike (see question 4 below).
If an employee participates in any protests or rallies which have not received the letter of no objection from the police, then this may be unlawful.
3. Do employees need to inform employers before they take part in a strike?
There is no statutory obligation for employees to inform employers of their intention to participate in a strike. That being said, most companies will require employees to inform their relevant line manager or Human Resources ahead of time if they will be absent from work, regardless of the reason for the absence.
4. Can employees take annual leave to participate in a strike?
Potentially yes. Under the Employment Ordinance, employers must grant employees a minimum number of statutory annual leave days per year. On top of that, it is not uncommon for employers to grant employees additional annual leave days above the statutory requirement.
The Employment Ordinance provides that the timing of statutory annual leave should be appointed by the employer after consultation with the employee. In practice, it is typically the employee who makes an application to take annual leave (rather than for the timing to be designated by the employer), but the employer has the right to reject the application if it is of the view that the timing is inappropriate.
In other words, whether or not an employee can participate in a strike by taking annual leave will depend on whether the application for leave is approved by the employer.
5. So what should an employer do if an employee is absent from work without prior approval?
If an employee is absent from work without leave (or without a reason which is accepted by the employer), then this may be treated as an unauthorised absence. Some employers may have a policy dealing with unauthorised absences. Those without a specific policy may in their discretion treat absences as paid time-off, annual leave or unpaid leave.
Depending on the circumstances and the reason for the absence, an employer may also take disciplinary action against an employee, such as giving a verbal or written warning. Any disciplinary action taken should be commensurate with the circumstances of the case – otherwise, the affected employee may bring a constructive dismissal or breach of contract claim (e.g. for breach of the implied duty of trust and confidence or duty of good faith) against the employer.
6. Can I require my employees not to bring their politics to work?
Yes. Employers can require employees to make sure that any statements they make (either in person, via social media or otherwise) that could be construed as being political in nature are made in the employee’s personal capacity only and are not in any way connected to the employer’s business. Employers can also require employees not to use any company systems to make such statements and not to wear anything displaying the organisation’s branding or logo when participating in any political action. Lastly, employers can also require employees to undertake any lawful political action in their own time and not during working hours.
7. What should employers be aware of?
As protests and rallies continue in the city, having a business continuity plan in place is extremely important in ensuring the safety of employees and to minimise disruptions to the business.
Employers should keep abreast of new developments and evaluate the situation each day. If there is a risk that employees’ safety may be compromised during their commute to or from work, employers should allow employees the opportunity to work remotely/ from home where possible.
In certain industries (such as retail), this may not be a feasible option because employees are customer-facing. In that case, employers need to evaluate the situation and consider shutting down the business on certain days where necessary.
A good business continuity plan should outline procedures that will take place before, during and after an emergency or crisis to minimise the disruptions and to maintain “business as usual” as far as possible.
If you do not already have a business continuity plan, there is no time like now to put one in place.