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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.
