Time to seriously consider a picketing code for Hong Kong
Updated: 2013-04-10 06:23
By Andrew Mak(HK Edition)
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Hong Kong is always recognized for its healthy economy but talks about the gap between the wealthy and the poor often occupy media attention. However, the recent labor dispute at the container terminal has provided food for thought of what practical moves may be taken in dealing with such a situation. One of the controversial parts of the drama is the use of picketing.
Picketing is a form of protest in which people assemble outside a place of work or location where an event is taking place, and is often used in an attempt to dissuade others from getting inside, but it can also be enacted to draw public attention to a cause. Picketing is aimed at achieving both loss of customers and negative publicity, or discouraging or preventing workers and customers from entering the site and hence preventing the business from operating normally. Generally picketers aim to pressure employers to meet particular demands or even cease business.
In Hong Kong it is often thought that the right to picket is indirectly protected by the right to form trade unions and to strike under Article 27 of the Basic Law, and the prominence given to workers' rights in International Labor Conventions recognized under Article 39 of the Basic Law. This is on top of the constitutional and statutory rights to freedom of peaceful assembly and freedom of association. Section 9 of the Employment Ordinance makes it clear that the fact that an employee takes part in a strike does not entitle his employer to terminate the employee's contract of employment. If a worker is dismissed for strike action, he or she can sue the employer for compensation.
The problem even with those protections is that there is no general legal "right to picket" as such, but attendance for the purpose of peaceful picketing has long been recognized to be a lawful activity. The law imposes limits on how, where, and for what purpose such picketing can be undertaken. The Trade Union Ordinance gives a registered trade union and any employee, or a member or officer of a registered trade union, immunity from civil liability in relation to any acts committed in contemplation or furtherance of a trade dispute to which the union (or the employee, member or officer) is party. Section 46 renders peaceful picketing lawful if carried on by persons whether "acting on their own behalf or on behalf of a registered trade union in contemplation or furtherance of a trade dispute". However, if those persons attend in such numbers, or in such a manner, as to be calculated to intimidate any person in that place, or to obstruct, or to lead to a breach of the peace, they shall be guilty of an offense and may be liable on summary conviction to a fine of up to $1,000 and to six months imprisonment.
These statutory limits were intended to help ensure proper protection for those who may be affected by picketing - including those who wish to cross a picket line and go to work. It must be remembered that it is a common law civil wrong, actionable in the civil courts, to persuade someone to break his contract of employment, or to secure the breaking of a commercial contract. The law only exempts from this liability those acting in contemplation or furtherance of a trade dispute, including - in certain circumstances - pickets themselves.
The law on picketing is more developed in the UK. There is a Picketing Code of Practice which explains the rules around lawful picketing. The statutory immunities afford no protection for a picket, anyone involved in activities associated with picketing, or anyone organizing a picket who commits some other kind of civil wrong - such as trespass or nuisance. It is unclear whether the statutory immunities would protect anyone - whether a picket, an employee who decides to take industrial action, or to break his contract of employment because he is persuaded to do so by a picket - from the consequences which may follow if they choose to take industrial action or break their contracts of employment. These could include, for example, loss of wages, or other disciplinary action or dismissal from employment. The UK Code is a mere guideline in the sense that it recognizes the right of courts and industrial tribunals to interpret and apply the law in particular cases. However, it had simplified matters by outlining key provisions of the civil and criminal law and, where relevant, giving guidance on good practice. It is perhaps time to consider more seriously a code for Hong Kong.
The author is a barrister and chairman of the Hong Kong Bar's Special Committee on Planning and Policy.
(HK Edition 04/10/2013 page9)