Pressure looms over HK workers
The world will be watching to see if China’s army marches across the border into Hong Kong and imposes some form of martial law.
Hong Kong was a British Colony until 1997 when it was returned to China with the guarantee of certain freedoms not enjoyed in the rest of China by the mainland population.
Hong Kong has been a commercial hub for centuries with a key role of bridging the western world and China in terms of commerce and trade.
We have now seen three months of protests with huge numbers of people marching on the streets, perhaps up to
2 million.
It was triggered by an extradition law that would have allowed people in Hong Kong to be sent to China for trial. They would be subject to the Chinese justice system.
That has been suspended but the encroachment of a more dictatorial system on Hong Kong has led to a pro-democracy reaction that continues.
The Hong Kong media has reported that the Chinese Government has a three-pronged attack to democracy protests in Hong Kong – propaganda, economic leverage and intimidation.
Hong Kong-based airline Cathay Pacific was the first major organisation to bear the brunt of this attack. Weeks ago, after pressure from Beijing, Cathay warned its staff that they could be fired if they support or participate in the protests.
China has imposed regulations on Cathay Pacific requiring the airline to submit manifests of staff on flights that land in China or travel through Chinese airspace. Any staff involved in protests are banned from such flights.
Cathay Pacific complied with China’s demands because of the importance of China for its business activities. The staff of the airline continued to take part in protests despite these threats.
That incensed the Chinese Government, which brought intense pressure to bear on the chief executive of Cathay Pacific, Rupert Hogg, resulting in his resignation.
Some staff at the big four accounting firms PWC, Deloitte, KPMG, and Ernst and Young in Hong Kong had anonymously indicated support for a full-page advertisement in support of the protest movement.
The four companies said they firmly opposed any action or statement that challenges national sovereignty, in an attempt to placate China’s anger.
Undoubtedly the economic impact of China on Hong Kong is overwhelming.
New Zealand is a much more tolerant country. I struggle to think of any examples where our government has pressured employers to sack staff because of a political stand they took.
Employees here are protected against discrimination by the Employment Relations Act and the Human Rights Act. These acts prevent employees from being discriminated against in employment on several grounds, including political opinion and involvement in union activities. These protections apply even where there is external pressure.
For example, some years ago Cathay Pacific was the subject of litigation in New Zealand by two of its pilots. They said they were discriminated against on the grounds of age. The employer said the employment agreements were covered by the law in Hong Kong, which allowed Cathay to retire the pilots at the age of 55.
The New Zealand Supreme Court held that the Employment Relations Act applied and the right not to be discriminated against was not confined merely because the employer operates in one or more other countries with express discriminatory laws. Accordingly, Cathay could not rely on the retirement age mandated by Hong Kong law.
Protesting employees do have a duty of fidelity to their employer, which includes a duty not to bring the employer into disrepute. However, a 1990s Employment Court decision involving the Tararua District Council demonstrated that the courts are careful about making decisions that encroach on freedom of expression.
In that case, a council employee made statements at a public meeting opposing council policy and was dismissed for breaching her duty of fidelity.
Months prior to meeting, the employee had been told to answer any questions about the policy with a specific supportive statement. Despite that, the court found that the dismissal was wrong because the worker did not violate any active instructions or policies, as the specific instruction was now outdated and there were no direct instructions or policies preventing her statement. Further, in the context of the meeting, those taking part would judge the validity of the statements themselves.
The court was clear that an employer’s feelings of displeasure ‘‘cannot, of course, convert the employee’s lawful actions into misconduct’’.
This emphasises how tolerant we are of freedom of expression, even where an employee of the council speaks out against council policy despite previously being told to toe the party line.
China threatens to use its army to intimidate and effectively crush the protest movement in Hong Kong. The world hopes for a peaceful resolution.
Peter Cullen is a partner at Cullen – the Employment Law Firm. He can be contacted at peter@cullenlaw.co.nz.