Work and the right to protest
Hong Kong is now in its fourth straight month of protests, which have seen thousands of people take to the streets to rally against a controversial China extradition bill.
The financial hub has been brought to a standstill as streets have been blocked, airports closed and public transport cancelled. Even after Hong Kong’s chief executive Carrie Lam withdrew the controversial bill last week the protest movement has shown no signs of slowing down.
Concerns have also been growing over many businesses in Hong Kong that have punished, or outright fired, employees who have been involved in the protests. Most notably, Cathay Pacific – Hong Kong’s flagship airline carrier – has been accused of firing some employees who have taken part in or shown support for the prodemocracy protests.
One employee, Rebecca Sy, was fired on the spot after being confronted with printouts of her Facebook posts which supported the protest movement. The fallout of the protests, and increased pressure from Beijing, has led to the resignation of Cathay Pacific chief executive Rupert Hogg.
The situation raises interesting questions as to whether New Zealand employers can legitimately take action against their employees for being involved in protests that they may disagree with or which are otherwise contrary to their interests.
In short, an employer cannot discipline or fire an employee for being involved in a protest. Under the Human Rights Act, political opinion (and lack thereof) is one of a number of prohibited grounds of discrimination, along with sex, religion, ethnicity and age.
Section 22 of the act makes it unlawful for an employer to terminate an employee, subject them to any detriment, or offer them less favourable terms of employment or conditions of work, on the basis of any of the prohibited grounds of discrimination.
However, an employer can take disciplinary action against an employee for not turning up to work, if that employee does not have reasonable cause or authorisation to be away. That said, an employer cannot refuse a request for leave on the basis that they do not agree with the protest or do not want the employee to be involved in the protest. That in itself could amount to discrimination on the basis of political opinion.
The only situation in which an employee in New Zealand can legally walk off the job is if they are striking in connection with collective bargaining or health and safety concerns. Notice of strike action must be given, which in essential services requires a minimum of 14 days.
In these circumstances an employer is not legally able to take retaliatory action against a striking worker. Where it becomes more complex is when other employees (who are not involved in the collective bargaining) join the strike in solidarity with colleagues. This is known as a ‘‘sympathy’’ strike and is not lawful in New Zealand.
Between 2011 to 2013, Ports of Auckland and the Maritime Union were in a long-standing and highprofile industrial dispute which involved a number of lockouts and strikes and which went on for more than three years.
In February 2012 a container ship was berthed in Auckland and because of the strike by union members it was loaded by non-union employees and port company management. It subsequently shipped off and arrived in Wellington the next day. Union members in Wellington refused to work on the vessel, in solidarity with their Auckland counterparts, even though they were not parties to the collective bargaining. An injunction was sought, and granted, by the Employment Court which found that the employees were acting in concert and refusing to carry out their usual work, and were therefore striking.
The court deemed the strike to be unlawful because the employees were not bargaining for a collective agreement at the time, and therefore ordered the employees to return to work on the ship.
All New Zealanders have the right to freedom of expression and peaceful assembly. Our long history of protest, from the nuclear-free movement to the Ihuma¯ tao occupation, is a testament to this. However, those rights must also be exercised within the framework of employment laws, and simply walking off the job to join in protest or strike action may result in employment consequences.