Last month, the Legislative Council Panel on Manpower reviewed and discussed a briefing paper submitted by the Labour and Welfare Bureau of the Labour Department. The paper proposes amendments to the Employment Ordinance which currently requires Labour Tribunal orders for re-instatement or re-engagement of an employee to be made with the consent of both parties. The proposal is that this consent requirement on the employer's part be removed. If passed, employees' protection against trade union related employment bias would be increased. However, it is uncertain at this point whether the proposed bill will in fact be introduced.
Historically, an employee may not be lawfully terminated for participating in trade union activities. Unlawful termination gives rise to potential claims for unreasonable and unlawful termination against the employer. Unless the employer is able to show a valid (i.e., not trade union related and otherwise lawful) reason for termination, a Labour Tribunal can order re-instatement or re-engagement of the employee with the consent of both employer and employee. Alternatively, where no order for re-instatement or re-engagement is made, the Tribunal can require the employer to pay the employee terminal payments and/or compensation up to a maximum of HK$150,000. The anticipated bill proposes to empower the Labour Tribunal to make a compulsory order for re-instatement or re-engagement without first needing to obtain the consent of the employer provided the Tribunal considers such an order to be appropriate and compliance by the employer is reasonably practicable.
This development is a narrowing of the 2012 discussions about removing the need for the employer's consent which was not limited to trade union-related disputes. See: Will Hong Kong's Unreasonable Termination Provisions Get More Teeth?