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good to see some of its recommendations moving into law. Unfortunately, in the second major area dealt with by the Employment Bill wage protection the recommendation of the working party on social security has been ignored. Nevertheless, this is the first time in Hongkong that wages will receive the protection of the law. The Bill sets out, by and large to bring to Hongkong the standards laid down in ILO national Labour Organisation) Convention 95. This was adopted by the ILO in 1949; and since it came into force in 1952, it has been accepted in over 80 territories in- cluding Aden, Barbados, Brunei, Gibraltar, Maita, St Vincent, Malaysia, Surinam and the Solomon Islands. So it was time Hongkong caught up.
This is an important part of the Bill and some of the provisions have already been mentioned. Others stipulate that wages must be paid in legal tender; that drink, drugs or betting tickets cannot be part of a worker's wages; and that payment cannot be made in certain places except to the em- ployees working there. (These are places of amusement, bars, shops, places where authorised betting or cash sweeps are organised, and places where dangerous drugs are sold.) The only significant section of ILO Convention 95 which the Bill does not include deals with the protection of wages when the employer becomes insolvent. This is regrettable. because the Social Security Report drew attention to the nature of this problem in Hongkong.
If an employer becomes insolvent and his workers lose their jobs, their right to pay in lieu of notice is not given. priority over the claims of secured creditors, and even claims for wages in arrears take second place to the claims of fixed- charge debenture holders. Consequently, wages already earned are frequently not paid or only paid in part, and wages in lieu of notice are usually not met at all. Given the high rate. at which firms go out of business in Hongkong this situation causes hardship and much bitterness among workers. The decision not to try to solve this problem through the present Bill only makes sense if the Government intends to bring in the required reform through an amendment to bankruptcy and company legislation in the near future.
There are other issues which the Bill raises. How does one define a "manual worker"? The Bill does not offer a definition of this term and the courts in Britain have been
em-
Conditions of ployment in Hong-
kong's large undertakings
textile
are
quite high; neverthe- less, the position of employees could be greatly improved by the establishment of Industrial Tri-
an
bunal
to deal with labour disputes.
FAR EASTERN ECONOMIC REVIEW September 19, 1963
trying for the past 90 years to find a satisfactory definition. At various times, bus drivers with repairing duties were judged to be "manual workers", but tram drivers and bus conductors were not; a grocer's assistant and hair dresser were not, according to the courts, but a seamstress was. Clearly, we do not want to get into this sort of tangle in Hongkong. The only valid reason for distinguishing betwe "manual" and “non-manual" workers in this Bill is to cure that "manual workers" those doing heavy and unpleasant jobs not tied to this. unattractive form of employment by long- term contracts. If the Labour Department has reason to be- lieve that the binding of workers to this sort of toil is, or could be, a real problem, then the Bill will have to state explicitly those occupations which need protecting. But if this is not after all a problem, it would be much simpler if the proposed Ordinance applied to all employees regardless of income or the nature of their work.
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More fundamental problems arise out of the philosophy of the Bill, which is essentially individualistic and which ignores local economic realitics. It enshrines the legal fiction that when an employce enters into a contract of employment,. the terms of that contract are freely agreed between him and: the employer. The reality is that the terms of the contract are largely imposed by the stronger individual,
the em- ployer. In Britain collective action by workers, particularly. through trade unions, has done much to redress the weakness. of the individual worker. In Hongkong, where trade unions are weak or non-existent, labour laws based on the fiction that the worker as an individual can stand to his employer on, equal: terms must inevitably lack effective means of enforce-} ment. For example: Part Two of the Bill contains no punish- able offences. It merely creates rights and obligations of parties to a contract of employment which may be enforced in. a court of law. If a worker thinks his employer has broken.. their mutual contract, then the employee can bring a case against his boss. As a lawyer's model of “equality before the law", this is fine. As a help in a real-life situation, it is quite inadequate. Experience from many countries shows. that individual workers rarely bring cases against their em- ployer. They are unfamiliar with the law, and they are deterred by the time, trouble and expense involved.
The individual worker is also to be responsible for enforc- ing the provisions relating to the protection of wages under the Employment Bill. Only after he has complained will the. Labour Department be in a position to investigate. Again this seems unrealistic, given the power position of employers. vis-a-vis workers in Hongkong. Furthermore, the Bill under- pins the power of employers over employees by allowing an, employer to terminate a contract of employment without being obliged to inform the employee of the reason for dismissal. An unscrupulous employer is thereby provided with an oppor- tunity to victimise any employee whom he judges to be a "trouble-maker"; that is, someone who may be seeking to exercise the rights offered by this new Bill.
The Bill clearly needs amendment so that no employee may be dismissed without receiving in writing the reason for his dismissal. This would seem to be an elementary act of justice, and it would strengthen the cause of job-security which the Bill seeks to promote.
Linked to this is the fact that.
British experience shows that such written notices of dismissal are vital evidence in disputed cases of redundancy payments. For this Bill should not be seen in isolation. The Commissioner for Labour spoke in February of recommending in due course statutory rights to redundancy payments. The provisions for