Strike for Cause
August 4, 2019
For many worker bees in Hong Kong, few things elicit a deeper sigh or a sadder pout than Monday blues. That makes tomorrow—another humdrum Monday in an otherwise turbulent summer—the perfect day for a strike.
People at first were lukewarm to the idea of a citywide walkout to make their political demands heard. After all, Hong Kong isn’t France or Canada—collective labor action is a tough sell in the world’s most capitalistic jurisdiction. As much as Hong Kongers whine about their ball-and-chain desk job, for many the risk of losing it over politics doesn’t pass a cost-benefit analysis.
Then suddenly, like the Yuen Long march that also was met with initial skepticism, the so-called “8/5 Strike” started to gain traction. In the past few days, businesses from retail chains to travel agencies began to express solidarity for the movement on social media and beyond.
To prepare for the Monday showdown, scores of young protesters swarmed major MTR stations earlier this week to delay trains and interrupt the morning commute. Two days later, a quartet of volunteers got down on their knees for three hours outside a busy MTR station pleading with passersby to join the cause. One of them nearly fainted from exhaustion and scored brownie points with netizens.
The 8/5 Strike is shaping up to be one of the most anticipated operations in an impromptu “uncooperative campaign” to cower the government into submission. But before you jump on the speeding bandwagon, there are a few things you should know to avoid an uncomfortable talking-to from your manager on Tuesday morning.
It isn’t technically a strike
You may have read somewhere that the right to strike is protected under the Basic Law and the Employment Ordinance. While you aren’t wrong, you should know that skipping work for political reasons isn’t considered a “strike”—at least not according to the Trade Unions Ordinance.
The TUO defines a strike as “the cessation of work… in consequence of a dispute, done as a means of compelling their employer… to accept or not to accept terms or conditions of or affecting employment.”
In other words, a strike is a bargaining tactic in a dispute between the striker and his or her employer. If you decide to not show up for work on Monday out of anger over Carrie Lam and her government, your action isn’t directed at your employer and therefore doesn’t qualify as a strike in the eyes of the law. That means you aren’t protected by the Employment Ordinance that otherwise prohibits an employer from terminating its employees without notice on the grounds that they have taken part in a strike.
Put still another way, if you choose to skip work on Monday unannounced, your absence may be counted as an unauthorized leave. Depending on the terms of your employment contract, you may be subject to disciplinary action, pay deduction or summary dismissal (termination without notice).
Ways you may support the cause
1. Take a vacation day
The safest way to partake in the strike without getting the pink slip is to apply for annual leave. Under Hong Kong law, employees are entitled to a statutory minimum paid leave of seven to fourteen days per year depending on their length of service. Individual companies, especially large local and multinational corporations, offer more generous paid leave in their employment contracts. For instance, many banks give non-support staff twenty days of annual leave or more.
So by all means take a day off on Monday to either stay home or join one of rallies across the city—if it is covered by a letter of no objection from the police. As of the time this article was written, the permits had yet to be issued.
Caveats: If by now you haven’t yet applied for annual leave and your company doesn’t allow retroactive leave applications, you’re probably a little late. Companies typically require leave applications be pre-approved by the line manager. Furthermore, considering that some of your colleagues are already planning on skipping work on Monday, management has legitimate reasons to reject your request, retroactive or not, on the grounds that a minimum staff is required for coverage. As explained above, unauthorized leave may result in disciplinary action, pay deduction or even dismissal.
2. Work from home
Many companies have put in place a business continuity plan (BCP) in the event of a natural disaster, such as Typhoon Mangkhut last summer that halted all modes of public transport, or a political upheaval like the Occupy Movement that paralyzed major thoroughfares in 2014.
Ahead of a major disruptive event, the human resources department will typically send out an email to all staff detailing a response plan, including urging staff to log on to their computers at home to ensure continuity of service.
If you’ve received a notice of that nature from your employer, that may be your license to not go to work on Monday. First thing in the morning, you should turn on the television to find out what’s happening on the streets before putting on your suit or uniform. If there’s a reasonable expectation that your commute will be disrupted or delayed, then a no-show is justifiable, if not encouraged. In many cases, it’s in the employer’s interest for staff to stay home and be productive, especially if traveling to work may cost them hours on a bus that has been trapped on an occupied highway or on the MTR train because the doors won’t close.
Option 2 is a risk-free option to show support for the movement in spirit. Even though you aren’t technically “on strike” when working from home, you are contributing to an uncooperative campaign aimed at turning the bustling city into a ghost town, so that protesters may roam free and stage their acts of resistance. You are also challenging the government’s “business as usual” or “let’s wait it out” attitude. Admittedly, this option is only applicable to staff covered by a BCP. For obvious reasons, working from home isn’t an option for client-facing jobs such as retail, food and beverage, and public transport.
Caveats: If you decide to follow your employer’s BCP, make sure you can demonstrate a reasonable expectation to be impacted by traffic disruptions. For instance, if you live within walking distance from work or if your commute is nowhere near any of the protests, then the BCP may not apply to you.
More importantly, if you are working from home, don’t go on the streets during business hours no matter how much you want to support the protesters. An Instagram picture of you holding up an anti-extradition sign on Harcourt Road, whether it is posted by you, a friend or a stranger, may get you into serious trouble.
3.Take sick leave
Calling in sick to join the 8/5 Strike or related activities is a risky option, one that makes employment lawyers cringe and suck air through their teeth in disapproval.
Apart from being dishonest, telling your boss you’re too sick to work on the day of a citywide walkout is implausibly coincidental. That leaves you vulnerable to suspicion and challenge. Furthermore, your doctor may be reluctant to write you a medical certificate for fear of his own professional repercussions, even if he or she normally is relaxed about signing notes.
It is important to note that not every job offers paid sick leave. Under Hong Kong law, employers are required to compensate employees (at 80 percent of their regular salary) only if the latter have been out sick for four consecutive days or longer. Unless your employment contract provides better terms than the statutory minimum, your one-day sick leave, even if unchallenged, will be unpaid.
Caveats: Calling in sick when you aren’t, is as much a lie as it is a potential breach of your employment contract and code of conduct. It isn’t a path you should take, unless you are the lucky few who have received tacit approval from your unusually understanding and progressive employer.
For instance, several big banks and accounting firms have reportedly sent out internal emails to their staff expressing “respect for freedom of expression” and that “if you decide not to come to work on Monday, please put your safety first.” Happy employees are reading between the lines and inferring that management is willing to look the other way. Even so, you are well-served to make a thorough risk assessment before pursuing option 3.
Read the fine print
As a general matter, employment lawyers suggest that you follow two basic rules when juggling between work and political activism. First, you should always separate your day job from personal politics. For instance, you should never identify your employer on social media when making a potentially sensitive post.
Second, before taking part in a political activity, read your employment contract carefully. If you have any questions, consult your HR department or in-house employment lawyer.
The foregoing analysis only applies to employees in the private sector. Civil servants, on the other hand, are bound by a separate, much more restrictive set of rules and guidelines concerning political participation.
The Civil Service Code requires all government employees to maintain “political neutrality” and serve the chief executive with “total loyalty.” What they do on their own time must not cause any “embarrassment” to the government. None of the highlighted terms are defined in the CSC and they may be interpreted broadly against the employee during a disciplinary hearing.
If you make informed decisions, your job doesn’t have to get in the way of your political activism and vice versa. So whether you are an investment banker or a bus driver, and whether you are in government or the private sector, consider your risk and know your professional boundaries before making plans on Monday.
This article was published in Hong Kong Free Press under the title “What Hongkongers should know before going on strike on Monday.”