TNAG-0232-FCO40-268-Legislation-relating-to-registration-of-trade-unions-in-Hong-1970 — Page 158

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The differance seems to be very important.

If I have interpreted

section 42 right it means that in Hong Kong it is an actionable tort (civil wrong) for one employee to persuade another to break his contract of employment, e.g., to strike or go slow, unless he is doing it in the form of peaceful picketing within section 46 or is acting as an agent

of a registered trade union. This seems to be an extraordinary situation.

It puts at risk of an action for damages by the employer a significant

number of those involved in industrial disputes in Hong Kong.

Coupled with doubts about the meaning of section 42, there is the

uncertain effect of Rookes v. Barnard, a ruling by which it is clear

thet the Hong Kong courts will hold themselves bound. Rookes was an

employee of B.0.A.C. at London airport and a member of the draughtsman's

tution. He had a dispute with the union end left it. The union then

told B.O.A.C. that if Rookes was not removed from the design office all

their members would strike. B.O.A.C. gave way and sacked Rookes, where-

upon Rookes sued for damages three union officials, two of them B.O.A.C.

employees.

:

To cut a long story short Rookes won his case. One of the things

the court clearly decided was that "if A threatens to break his contract

with B and, as a result of action taken by B to avoid the breach of

contract threatened by A, C suffers damage, then C has an action for

intimidation against A because the threat of a breach of contract is a

threat to commit an unlawful act".

However, there was a lot more to Rookes v. Barnard than this and it was generally agreed that the whole right to strike had been threatened. A leading authority, Professor K.W. Wedderburn, said after 1964 it " be- came arguable that even without a threat, a combination to act in breach

of contract could be a conspiracy to use unlawful means

If so,

the consequences could be appalling, and liability in damages could be

a constant hazard in strikes".

....

It must be admitted that in the United Kingdom the Trades Disputes

Act 1965 has not solved all the problems left by Rootes v. Barnard.

But we are even worse off in Hong Kong where there is no equivalent of

the 1965 Act.

Local restrictions on the right to strike are also contained in the

Illegal Strikes and Lock-outs Ordinance previously referred to.

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