在工作時間內罷工會否有機會被炒? 政治罷工不受勞工法例保障?

根據香港法例第57章《#僱傭條例》第21B(1)(b)條,任何僱員,在其本人與僱主之間,並凡作為職工會會員,享有在適當時間參加該職工會活動的權利。

適當時間(appropriate time),就僱員參加職工會任何活動而言,指-
(a) 其工作時間以外的時間;或
(b) 其工作時間以內的時間,而按照與其僱主或任何代表其僱主的人所議定的安排,或得到其僱主或任何代表其僱主的人給予的同意,容許在該時間內參加該等活動。

換句話說,僱員不可在未經僱主同意下在非「適當時間」參加職工會活動(包括罷工),否則可被視為行為不當,有機會被紀律處分甚或终止僱傭合約。

另外,現行法例主要是針對僱員在爭取勞工權益而行使罷工權時給予保障。以政府不封關的政策為由發動罷工,在現行法律定義可能根本不被當作「罷工」。如果這樣的話,參與者亦可能不會受到勞工法例保障。

根據香港法例第332章 《#職工會條例》:
“罷工” (#strike)指一群受僱用的人經共同協定而停止工作,或任何數目的受僱用的人因發生糾紛而一致拒絕、或經達成共識而拒絕繼續為某僱主工作,作為迫使他們的僱主、另一人或另一群人的僱主,或任何受僱的人或一群受僱的人,接受或不接受僱傭條款或條件或影響僱傭的條款或條件的方法。

Is it possible for an employer to dismiss an employee who takes part in a strike within working hours? Is taking part in a strike for political reasons not protected under the existing employment legislation?

Under Section 21B(1)(b) of the Employment Ordinance (Cap. 57), every employee shall as between himself and his employer, and where he is a member of any trade union, the right, at any appropriate time, to take part in the activities of the trade union.

appropriate time (適當時間) means, in relation to an employee taking part in any activities of a trade union, time which either—
(a)is outside his working hours; or
(b)is a time within his working hours at which, in accordance with arrangements agreed with or consent given by or on behalf of his employer, it is permissible for him to take part in those activities.

That means an employee shall not take part in any activities of a trade union (including a strike) at a time which is not an “appropriate time” without the consent of the employer. Otherwise, the employee’s action may amount to misconduct, which is subject to disciplinary actions or even termination of employment.

In addition, the existing employment legislation offers protection to an employee taking part in a strike for matters relating to employment terms and conditions. Taking part in a strike for the purpose of demanding closure of the border with mainland China by the HKSAR Government may not even fall within the legal definition of “strike” under the existing legislation. If that is the case, the employees who take part in the strike may not be able to rely on the protection offered under the employment legislation.

Under the Trade Unions Ordinance (Cap. 332):

“strike” (罷工) means the cessation of work by a body of persons employed acting in combination, or a concerted refusal, or a refusal under a common understanding, of any number of persons employed, to continue to work for an employer in consequence of a dispute, done as a means of compelling their employer or the employer of any other person or body of persons, or any person or body of persons employed, to accept or not to accept terms or conditions of or affecting employment.

Lawyers HK
Author: Lawyers HK

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