TNAG-0232-FCO40-268-Legislation-relating-to-registration-of-trade-unions-in-Hong-1970 — Page 67

The differance seene to be very important. If I have interpreted

section 42 right it means that in Hong Kông it is en 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

that the trg Kang courts will hold themselves bound. Rooker was an

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

tulion. He had a dispute with the union and 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.CAC. gave way and sacked Rookes, where-

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

One of the things

To cut a long story short Rookes won his case,

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

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

contract threatened by A, & 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. Bernard 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

" bom

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 Rookies v. Barnard, But we are even worse aff 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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