The condition of workers in fighting back their salary in Labour Tribunal
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The Labour Tribunal has investigated 11263 cases in 2003, up to a value of 12.12 hundred million Hong Kong dollars. Amongst those 26,890 claim items, arrears of salary and holiday have occupied 40%. |
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Meanwhile, in all the claim cases handled by the Labour Tribunal in 2003, about 55% of disputes have been resolved by reconciliation. |
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Actually, most of the claim cases were referred by the Labour Relations Division of Labour Department to the Labour Tribunal. The Labour Relations Division itself is a mechanism for settlement and reconciliation of disputes; the unsettled cases will be transferred to the Labour Tribunal for adjudication. |
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More than half of the no. of cases were ended by reconciliation, this implying that the employees have accepted the settlement conditions which are less desirable than those guaranteed by legal rights, i.e. a cut in payback for the employees' work efforts. |
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Now within the Labour Tribunal Ordinance that the Labour Tribunal has no legitimate power that is set to punish those employers who have deliberately
deferred the compensation payment which the Labour Tribunal has
come to a decision. Thus the employees are not guarateened to get
back their labour compensation by claiming in the Labour Tribunal.
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1Claims include "wage arrear", " annual leave pay", " statutory holiday pay" , "rest day pay", "salary cut", "wage deduction", "maternity leave pay"
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To understand the difficulties faced by the employees in making claim from the Labour Tribunal and to bring into good recommendations for improvement, we conducted a questionnaires survey in 2005 (only Chinese version of the research full report was available). Below are the survey's major findings and the opinions arising from our experience in handling the employees' compensation claim cases. Through this reference, we hope other employees in Hong Kong could grasp a clearer picture of the problem.
1. over-emphasis on reconciliation:
a cut in payback for workers' hard work
In the survey, most of the respondents (97.7%) have made claimed in the Labour Tribunal by referral of the Labour Department. It implied that they have made claims at the Labour Tribunal after they failed to settle their cases in the Labour Relations Division of the Department. The survey also revealed, 83.3% respondents have settled their claims and 61.4% who have not settled their claims by Labour Tribunal expressed that the investigators and adjudicators have tried to suggest them compromise. 43.7% who have settled claims expressed that the concerned parties have tried two times or more to suggest them compromise. The result unveiled the Labour Tribunal has tried more than one time to persuade the employees who came to ask for help from the Labour Relations Division to seek reconciliation. To reconciliate means the employees might obtain a less sum and accept the conditions much undesirable than those under the protection of the Employment Ordinance.
2. Waste your energy, time and money: hurdle before a court trial
To apply for a claim in the Labour Tribunal, you have to go through a series of complicated administrative procedure. Before taking the formal application, the workers have to prepare a series of related documents, business registration copy or company registration copy.
In the survey, most of the respondents(71.4%) expressed that they have encountered different difficulties in the course of making claims. 55.3% admitted that they did not understand the legislative procedure in the course of claiming. Close to 30% has been in lack of claim evidence; the rest 20.4% has encountered difficulties in checking business registrations. The result indicated that the employees have faced a multiply of obstacles in the course of claiming and settling the labour disputes.
3.No payback even you win the lawsuit:"toothless" tiger
Currently, the Labour Tribunal has no power to punish the party who does not comply with the court's decision. Simply speaking, the Labour Tribunal is "toothless" tiger only; even the employee wins the lawsuit, the Labour Tribunal could not help if the employer does not comply with the court's decision to payback compensation within agreed dates.
Even acute, if the employers oppose the court's decision and reject to pay, the employee claimer has to hang around various departments for help, including District Court, Legal Aid Department, High Court, Labour Department and its Wage Security Division. Those who do not understand the legislative procedure will feel more helpless and worried. It does not only disturb the employees' work life, but also bring into psychological burden to them. If the claim is a small sum only, the game is not worth the candle indeed.
4. "installment payment"=no payment?!
As a result of over-emphasis on reconciliation, "installment payment" has become the outcome inevitably. The investigation officer of the Labour Tribunal has always allowed the employer to payback by installment in case he has not checked out whether the employer is truly unable to payback or not within the agreed dates. (Our center has raised the question to the Legislative Council through the help of legislative councilor, Mr. Lau Chin-shek, and it is informed that the Labour Tribunal has never investigated any claim cases in 2003 to 2005 and the job of the investigation officer is only to wait for the employer's collaboration in information submission.
The employee could apply for the Protection of Wages on Insolvency Fund within 6 months after his/her termination of employment. If the employee has accepted the method of installment payment and unfortunately the employer has not paid after the 6 months, he/she might not be able to apply for the Insolvency Fund.
The workers are facing the problem of installment payback for their salary and holiday, that not only seriously affected their family income, but it might also erect much psychological pressure and long-term suffering; meanwhile they might not be paid in long run.
2The Ordinance of "Labour Tribunal" has not given any authority to punish the party which is failed to comply with the court's decision.
Catholic social teaching emphasizes that man is the subject of work and the value of the person as a labour is higher than capital value. It is the basic principle of the rights of work and workers in Catholic social teaching.
Pope John Paul II has mentioned, "Just remuneration for the work of an adult who is responsible for a family means remuneration which will suffice for establishing and properly maintaining a family and for providing security for its future." （On Human Work, #19, Encyclical of Pope John Paul II issued on 1981)
We believe: Wage is the only way for most of the people in a society to maintain their family lives and protect it in the future. Hence, we realise that a Just remuneration for the work could offer the persons with opportunities for a dignified living and enough for individual's further development, as to stimulate social-integration. We also believe: "Just remuneration for the work" does not just refer to the salary payment, but it is also important to pay it on time because what most of the workers are claiming at the Labour Tribunal are the compensation for their hardwork. Some of the workers need to overcome many obstacles in order to get the compensation, that should not really happen in a justice society.
Catholic Diocesan Pastoral Centre for Workers (Kowloon) are concerned with the
condition faced by the unpaid workers and has set up the Salary Back Worker
Concern Group for the workers affected. The Group discusses the problems
which are being faced by the unpaid workers and collaborate to express
their opinions and submit recommendations to the concerned parties.
A group of workers who have had appeal in Labour Tribunal join together to organise the Salary Back Worker Concern Group. For the sake of yourself and the others, please support the following three appeals! Please sign up for the Signature Campaign (only Chinese version of the questionnaire is available)欠薪勞工關注組簽名運動 (WORD file)
1. Severe punishment of the employers who have not taken paid wage
2. Resume the court service of Labour Tribunal in night time
3. Set up direct computer connections service at Labour Department and the Labour Tribunal to the relevant government departments (like Companies Registry)