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The second difference is that although it is true that basically
our Trade Union Registration Ordinance follows the United KingdomTM
legislation, the Ordinance contains some elements borrowed from the
English Act of 1927 just referred to: viz, the proviso to section 46,
the second subsection of section 47, the definitions of "intimidation" and of "injury" contained in section 2.
Thirdly, a decision of the House of Lords in 1964, called Rookes v
Barnard, threw the whole right to strike into doubt. In England a
Trade Disputes Act 1965 was hurriedly passed to restore the law to what is had for 60 years been thought to be. In Hong Kong no correspon- ding Act has been passed so our law is governed by the confusing and reactionary decision in Rookes v Barnard. In addition to this we have only a modified version of section 3 of the English Trade Disputes Act
1900.
Finally, we have in Hong Kong stringent laws relating to public order. The Public Order Ordinance contains powers which can be used, if the authorities so wish, to stifle effective action by trade unions.
Let me explain the significance of these differences between Hong Kong and English law.
The basis of the law relating to strikes
To understand the English law of industrial relations it is necessary to appreciate, first, that a strike is a breach of the worker's contract
with his employer. A breach of contract is not a crime but it is an
unlawful act which gives the employer the right summarily to dismiss the employee and sue him for damages. (In practice employers do not usually sue for damages but they frequently use their power of dismissal,) The
best view of the law is that there is a breach of contract even if notice
of the strike is given to the employer.
Secondly, the law says that an agreement between two or more people to do an act may be a criminal conspiracy, even if the thing they agree to do would not be criminal if done by only one person. Accordingly, the English judges of the 19th Century, strongly anti-working class in their bias, decided that a strike was a criminal conspiracy and a threat
to strike was a form of intimidation.
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