GRS 2008
CONFIDENTIAL
CONFIDEN MAL
HKK 430
oli
DESKBY 1289002
FM HONG KONG 1285852 NOVEMBER 80
TO IMMEDIATE F C O
TELEGRAM NUMBER 1490 OF 12 NOVEMBER
INFO ROUTINE HONG KONG GOVERNMENT OFFICE LONDONDEX
FOR CLIFT
FROM MACPHERSON
RECEIVED IN REGGISY NO.
14 NOV 1980
DESK OFFICER
PA
us
34
REGISTRY
Action Taken
AW
५
85
I REFER TO YOUR LETTER OF 1ST APRIL TO ME REGARDING
HKG'S POSITION FOLLOWING THE JUDGEMENT IN THE DISPENSERS' CASE.
SINCE THEN. WE HAVE BEEN EXAMINING HKG ́S LEGAL POSITION AND
ITS POWERS IN RELATION TO ITS EMPLOYEES WITH A VIEW TO RESOLVING
THE EXISTING UNCERTAINTY. ACCORDINGLY, WE ARE NOW FORWARDING
THE HONG KONG GOVERNMENT'S PROPOSALS TO ACHIEVE THAT POSITION.
2. AS YOU KNOW, IN NOVEMBER 1979 SOME 26 DISPENSERS EMPLOYED
BY THE GOVERNMENT WERE SUSPENDED FOR ABOUT A WEEK FOR REFUSING TO
WORK (I. E. FAILING TO CARRY OUT THEIR USUSAL DUTIES) IN PROTEST
OVER THEIR PAY AND WORKING CONDITIONS. THEY SOUGHT DECLARATIONS
THAT THE GOVERNMENT HAS NO POWER TO SUSPEND WITHOUT PAY. THE
' GOVERNMENT HAD PURPORTED TO ACT UNDER CSR 611. THIS REGULATION
WAS INTRODUCED IN 1977 IN AN EFFORT TO GIVE THE GOVERNMENT
POWER TO DEAL WITH INDUSTRIAL PROTESTS IN AN EFFECTIVE BUT
́ ́NON-DISCIPLINARY?? WAY. A CIRCULAR ISSUED BY GOVERNMENT
SECRETARIAT ON 18TH OCTOBER, 1977 DIRECTED TO STAFF
ASSOCIATIONS AND OTHERS CONTAINS THE WORDS INDUSTRIAL
ACTION IS NOT NORMALLY REGARDED AS A DISCIPLINARY OFFENCE AND IT
IS NOT THEREFORE CONSIDERED APPROPRIATE TO TAKE OR THREATEN
DISCIPLINARY ACTION AGAINST OFFICERS WHO ARE ACTING TOGETHER
IN FURTHERANCE OF A TRADE DISPUTE, EXCEPT IN UNUSUAL
CIRCUMSTANCES. THIS, WE THINK, REFLECTS THE ATTITUDE OF H M G
ON THE SUBJECT.
፡፡
Seel
Si
3. DISCIPLINARY ACTION OR NOT, LEGAL ADVICE IS THAT AN EMPLOYER
HAS NO COMMON LAW RIGHT TO SUSPEND HIS WORKERS WITHOUT PAY, BUT
REQUIRES CONTRACTUAL OR OTHER POWER TO DO SO. IN THE DISPENSERS
CASE (LAM YUK-MING AND 25 OTHERS V. A. G. MISCELLANEOUS PROCEEDINGS
1979 NO 825) CONS J. HELD THAT NOTHWITHSTANDING THAT THE
EMPLOYMENT CONTRACTS OF MOST GOVERNMENT SERVANTS PROVIDE THAT
THEY ARE SUBJECT TO GOVERNMENT REGULATIONS THE PARTIES DO
NOT INTEND THESE REGULATIONS TO BE BINDING AS A MATTER OF
CONTRACT. AFTER CAREFUL CONSIDERATION WE CONSIDER THIS
POSITION SHOULD BE ACCEPTED. IT FOLLOWS THAT CSR 611, WHICH IS
MADE BY THE GOVERNOR, BUT IN ITSELF HAS NO FORCE IN LAW,
ONLY BE LEGALLY EFFECTIVE IF THE GOVERNOR HAS THE RIGHT
OR POWER TO CONTROL THE MATTER COVERED BY THE REGULATION.
CONFIDEN MAL
WILL
IT IS
/WELL
De
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see
ник
430/1 +16) 1981
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