TNAG-0992-FCO40-1211-Policy-on-salaries-and-pensions-for-civil-service-in-Hong-Ko-1980 — Page 325

LETTER TO R. D. CLIFT, FCO

REVISED AFTER C.S.' MEETING ON 9.10.80

Annex I

I refer to your letter of 1st April to Ian Macpherson 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 usual 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 C.S. R. 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.

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 & 25 others v. A.G. Miscellaneous Proceedings 1979 No. 825) Cons J. held

that notwithstanding that the employment contracts of most Goverment

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 C.S.R. 611, which is made by the Governor,