Combatants want to sort out redress mess

PUBLISHED : Saturday, 13 September, 2003, 12:00am
UPDATED : Saturday, 13 September, 2003, 12:00am


IF YOU HAVE ever had the misfortune of visiting the 20th floor of the Pioneer Centre in Prince Edward, you will know it to be a miserable place. A long, grey corridor joins scores of rooms where people slug out disputes with their employers.

Or so the theory goes. The reality is that the majority come to a settlement. Exactly how they got to this conclusion is another matter - one which will hopefully be addressed in a Judicial working party review due to be completed at the end of the year.

In an unusual show of agreement, workers and employers are voicing their discontent over a system that should offer them simple legal redress over labour disputes.

The sense is that they are under pressure to settle before the merits of their case are even debated.

After a number of visits to the Labour Tribunal, it is hard to subscribe to the view that it offers a 'quick, informal and inexpensive means to settle monetary disputes' between employers and workers.

This may have been the case 30 years ago when it was first set up. Today its key elements can be better described as 'lengthy, frustrating, confusing and unpredictable'.

Due process is viewed by many to have been compromised as a result of resource constraints - the massive leap in cases over the past few years has left the tribunal bursting at the seams.

Both companies and employees have complained of feeling induced to settle.

On any given hearing, the opening speech of the presiding officer sets the ball rolling. You may not win here, he explains, in which case you will have to hire lawyers and barristers and it will be very, very expensive. My idea of justice may be different from yours. Go out and talk with each other.

Fair enough. If this is the 'explaining the law to both parties' part of the proceedings, however, it is lacking in both explanations and the law.

When the parties return, the cautions continue and those with no past experience of 'the speech' seem to take it as a warning that they really don't stand much of a chance should they proceed.

Had this all been based on full scrutiny and understanding of the dispute, it would indeed be a quick and cheap solution. Instead, it just comes across as a cheap way to lessen the caseload.

The number of people filing at the Labour Tribunal has doubled in the past five or six years, with a total of 12,326 lodging claims last year.

With this surge comes a host of complaints - for those who do dare to proceed.

In the past, criticisms often focused on the fact that proceedings could be slightly askew.

In one corner, you have the worker with no legal representation. Legal counsel is not permitted.

However in the other corner, depending on the financial resources of the company, chances are it sends in the company lawyer to represent its interests.

Intimidating for the employee?

A recent submission to Legco by representatives of Cathay Pacific Airways' union explains the dilemma quite succinctly: one of Cathay's solicitors was greeted at a hearing by the presiding officer with the words: 'How are you? I heard you are now the owner of your own firm.' A social exchange ensued.

Employers are, however, also clearly unhappy with the process. A survey of the Federation of Hong Kong Industries found 60 per cent to dub the process as cumbersome and time consuming. When asked if they felt the presiding officer was impartial or not, 60 per cent responded in the negative.

A common complaint was that the companies felt they had insufficient time to explain their cases thoroughly.

It is unfair to lay the blame solely with the judicial officers swamped with an ever-increasing caseload.

This is a phenomenon that should take no one by surprise, given the effects of the Asian financial crisis and, more recently, rising unemployment.

Pressure on the system was inevitable. As a result, 30 years on, faith in the Labour Tribunal as an effective mechanism is rapidly waning.

The most obvious solution is to increase funding and resources for the tribunal. Alternatively, the financial limits of the minor employment claims adjudication board could be increased to take up some of the caseload and clear the backlog.

Both will be contentious and judicial working parties have a habit of making wonderful recommendations - such as thrusting open the court doors to curb closed-door hearings - but failing to execute them.

The criticism of due process being sidelined at the Labour Tribunal is an acute one.

Taken in the context of Hong Kong's reputation as a leading legal services sector, it does it no justice.