Coronavirus outbreak: Hong Kong’s medical workers on strike could have been left with a bitter pill to swallow

Strikes are legal under a restricted definition which the agitating medical workers could have breached. They should not pave the way for the chief executive to declare a public emergency to deal with the new coronavirus

Regina Ip

Published: 9:00am, 9 Feb, 2020

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If anyone harbours any illusions that Hong Kong’s months-long, anti-government protests have died down in the wake of the novel coronavirus, he or she cannot be more mistaken. Although the protests no longer dominate headlines, road blockages, scuffles between protesters and the police and the hurling of petrol bombs continue to occur.

Since Lunar New Year, at least five home-made bombs have been found at railway stations, border control points and even hospital facilities, after threats had been made on online platforms, in a manner akin to tactics adopted by terrorists.

The fight against the government then moved insidiously to the medical front. On February 1, the Hospital Authority Employees Alliance, a newly established trade union, which boasted 13,000 members at the time, voted to go on strike from February 3, unless Hong Kong’s chief executive came to the negotiating table and accepted their demand for a “complete closure” of all control points to “save Hong Kong”.

As at 7pm on February 5, 5,100 employees were recorded absent, including 300 doctors, 3,100 nurses and 1,000 allied health professionals, accounting for roughly 5 per cent, 12 per cent and 12 per cent respectively of the Hospital Authority’s total strength.

The alliance demanded that all who enter Hong Kong, other than Hong Kong residents, be denied entry and all Hong Kong residents should be quarantined on their return. But the group never explained why it was necessary to close all control points, including the airport, where drastic cutback of air services between Hong Kong and mainland cities had already reduced mainland arrivals to a trickle.

On February 7, the alliance voted to end the strike, but not before briefly occupying key floors of the Hospital Authority headquarters.

The same cast of characters heavily involved in anti-government activism had spearheaded the strike. Three leading figures – chairperson Winnie Yu Wai-ming, Ivan Law Cheuk-yiu, a former leader at the Hong Kong Federation of Students, and Chris Cheung Ka-ki – have taken part in various protests, including Occupy Central in 2014 and last year’s extradition bill protests. A fourth person, Ng Chi-kit, had pressed for cutbacks in the daily quota of mainland Chinese entering Hong Kong.

Their emotional appeals and beguiling slogans succeeded in seducing many young minds into believing that the only way to prevent the spread of the virus is to cut off all ties with the world – even though the ringleaders probably only had in mind cutting off all ties with mainland China.

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The alliance had overlooked the fact that under the definition of “strike” in the Trade Unions Ordinance, employees can only go on strike on matters pertaining to “terms or conditions of or affecting employment”. By forcing the chief executive of Hong Kong, who is not their employer, to come to the negotiating table, and pressing the government to “close the border”, the alliance could have had organised an unlawful strike.

If they had persisted in such action and remained absent from duty, being “public servants” as defined in the Prevention of Bribery Ordinance , they could render themselves liable to being charged with the common law offence of “misconduct in public office”.

Indeed, a complaint to this effect was filed to the Independent Commission Against Corruption on February 6.

A medical worker takes the temperature of a woman at the reception of Queen Elizabeth Hospital on February 3. Photo: Winson Wong

The anxiety of frontline staff and their agitation for better protection in this difficult time is perfectly understandable, but to large numbers of the public, it is totally unacceptable for the alliance to use essential medical services as levers to put pressure on the government or hospital management at a time when the city’s medical services are already under severe stress.

Many have queried whether the medical staff on strike have forgotten their commitment to put patients first when they joined the medical profession.

In the same vein as the rioters, the alliance also pressed for “no punishment” for those who went on strike. The law forbids employers from punishing employees on strike, but if they were ruled to have been absent on duty rather than engaged in a lawful strike, there is no reason why the Hospital Authority should not deal with them in accordance with the usual human resource management practice regarding conduct and discipline.

Their supporters could argue they have a constitutional right to go on strike under Article 27 of the Basic Law. But none of the constitutional rights are absolute. Under Section 5 of the Hong Kong Bill of Rights Ordinance, it is stated: “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, measures may be taken derogating from the Bill of Rights to the extent strictly required by the exigencies of the situation.”

If the government were to declare a state of emergency arising from the outbreak of the novel coronavirus under emergency laws, the government could make laws to temporarily suspend the right to go on strike.

Since the end of World War II, Hong Kong has never closed its borders – not during the massive influx of the Vietnamese boatpeople in the late 1970s and the 1980s, nor during the massive arrival of illegal immigrants from mainland China in the early 1980s.

By calling for an unprecedented, complete lockdown of Hong Kong, the alliance will provide fodder to the government to declare that Hong Kong faces an existential threat. Now that the government has declared the novel coronavirus to be a “public health emergency”, the alliance should think twice before mounting another strike, or it risks the possibility of the courts making an injunction order against any strike on occasion of a public health emergency.

Regina Ip Lau Suk-yee is a lawmaker and chairwoman of the New People’s Party

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