In the recent case of Blakeney-Williams Campbell Richard and Others v Cathay Pacific Airways Limited and Others FACV 13/2011, the Court of Final Appeal (“CFA”) ruled that the Plaintiffs’ industrial action in the form of “contract compliance” came under the rubric of “activities of the trade union” which is protected by the Employment Ordinance (“EO”) if the other conditions are fulfilled.

Facts of the Case

1.       The Plaintiffs are the pilots of Cathay Pacific Airways Limited.

2.       The Defendants are Cathay Pacific Airways Limited and its two associated companies (together referred as “Cathay”).

3.       In 1999, dispute in relation to pilots’ rostering practices and contract entitlement arose between Cathay and the Hong Kong Aircrew Officers Association (“the Union”) which represented most pilots of Cathay.

4.       In July 2000, members of the Union agreed to start a “contract compliance” regime which involved “rigid adherence” to the strict terms of the pilots’ employment contract e.g. pilots were unable to be contacted on “guaranteed days off”, pilots would refuse to fly if there was the slightest doubt about their fitness etc.

5.       The “contract compliance” action had caused flight delays, cancellations and diversions.

6.       The Union urged the pilots to maintain the “contract compliance regime” and threatened the members (pilots) with expulsion from the Union if they did not comply.

7.       In June 2001, the “Maximum Safety Strategy” (“MSS”) (which would involve reversing the practice of expediting or abbreviating safety operations) proposed by the Union was also supported by the majority of the members.

8.       Cathay reacted to the situation by identifying those pilots who “had an attendance problem”, “had a warning letter on file in connection with a disciplinary matter” or “were considered ……to be unhelpful and uncooperative”.

9.       The identified pilots were “ranked” in order of perceived unreliability in terms of not working in Cathay’s interest.

10.    The most “unreliable” 49 pilots were then selected for dismissal (“the 49ers”).

11.    On 9^th July 2001, Cathay issued letters terminating the employment of the 49ers (“Dismissal Letters”).

12.    The termination was by way of 3 months’ pay in lieu of notice and no reason for the dismissal was identified in the Dismissal Letters.

13.    Cathay issued a press statement which set out Cathay’s position in relation to the dispute and the dismissal.

14.    The statement also described the “dismissed pilots” as employees “who we (Cathay) feel, cannot be relied upon to act in the best interests of the company in the future, and employees in whom we (Cathay) have, essentially lost confidence……”

15.    The majority of the 49er instituted proceedings against Cathay for various heads of damage arising out of the above events.

16.    The case went all the way up to the CFA.

Issues considered by the CFA

1.       Whether the dismissal of the 49ers was in breach of the Employment Ordinance (“EO”) with regard to the protection of employees’ participation in the activities of the trade union?

2.       Whether the dismissal of the 49ers was in breach of their respective employment contracts?

3.       Whether the damages for defamation by Cathay’s statement should be reduced?

This article will only canvass the first issue.

Right to participate in trade union activities

1.       S.21B of the EO provides that every employee shall as between himself and his employer have the following rights:-

a.       the right to be or to become a member or an officer of a trade union registered under the Trade Unions Ordinance;

b.       where he is a member or an officer of any such trade union, the right, at any appropriate time, to take part in the activities of the trade union;……

2.       Any employer, or any person acting on behalf of an employer, who :-

a.       prevents or deters, or does any act calculated to prevent or deter, an employee from exercising any of the rights conferred on him by subsection (1); or

b.       terminates the contract of employment of, penalizes, or otherwise discriminates against, an employee by reason of his exercising any such right,

shall be guilty of an offence and shall be liable on conviction to a fine at level 6.

3.       "Appropriate time" 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;

"working hours" means, in relation to an employee, any time when, in accordance with his contract with his employer, he is required to be at work.

Contract compliance regime is an activity
of the trade union protected by the EO

1.       The Union is a registered trade union and the pilots are members of the Union.

2.       The CFA took the view that the scope to be given to the expression, “activities of the trade union” is broad, which produces a coherent and practical outcome involving relatively wide protection for employees. Industrial action (including strikes) proposed, organized and enforced by a trade union will come under the statutory wording of “activities of the trade union”.

3.       In view of the above, the industrial action in the form of contract compliance in the Cathay case came under the rubric of “activities of the trade union” of the EO.

4.       The CFA ruled that Cathay had dismissed each Plaintiff on the ground of their participation in trade union activities contrary to S. 21B of the EO and was liable to pay damages of HKD 150,000 to each of the Plaintiff.

Conclusion

In view of the decision of the CFA in the Cathay case, employers should not terminate an employee’s employment for reason of participation in contract compliance action at the appropriate time which was proposed, organized and enforced by a registered trade union of which he is a member.