As coronavirus hammers businesses, some Hongkongers are questioning the legal grounds of forced unpaid leave

Kanis Leung

Hotel worker Helen has been forced to take four days of unpaid leave each month from February without knowing when her company will end this cost-saving measure as the coronavirus sweeps across the globe.

The unwanted holidays mean Helen, who prefers not to give her real name, now bears a greater financial burden because her salary was slashed by nearly 20 per cent to about HK$30,000 (US$3,866) monthly.

She gives HK$10,000 to her parents, and covers a monthly mortgage of more than HK$30,000 with her husband.

“I am very worried about the long-term impact,” she said. “I worry about the value of the flat depreciating. Paying tax is also a big expenditure.”

Helen is among an increasing number of employees forced or asked to take unpaid leave in Hong Kong as companies reel from the economic fallout of the health crisis.

But there are growing concerns about labour rights surrounding the legality of the practice.

Helen (not real name) feels she was unfairly asked to apply for unpaid leave. Photo: Winson Wong

As Hong Kong hunkers down for a second wave of infections expected to come from imported cases, the city is close to a standstill with all but three border checkpoints with mainland China sealed, tourism numbers abysmal, schools suspended and civil servants told to resume work-from-home arrangements.

As of noon on Monday the local tally of infections stood at 317, with four deaths.

Last week the government announced measures for all airport arrivals, placing incoming travellers under the mandatory 14-day quarantine.

Helen’s company, a hotel on Yee Wo Street in Causeway Bay, has been hit hard by the unprecedented tourism slump caused by the pandemic.

In late January, her manager told her the company’s decision and asked her to submit an application for leave on her own. She followed the instruction in the fear of losing the job if she disobeyed.

But just about three weeks ago, she came to know from a hotel union group that employers should have sought her consent first under the law.

Hongkongers are used to obeying people at the top ... It is not in our culture [to fight with bosses]

Carol Ng, Confederation of Trade Unions

“The firm is ridiculous,” she said. “I wonder if they just used the form to consider that I’m voluntarily taking unpaid leave. Basically I have no choice to take the holiday or not.”

Her hotel employer did not respond to inquiries from the Post.

Since Covid-19 hit the city in January, local businesses have scrambled to cut costs as tourism numbers plunged to 199,000 last month, the daily average in the first half of last year.

The city’s jobless rate hit 3.7 per cent – the highest in more than nine years – between December last year and February this year, with 134,100 people of the 3.9 million workforce becoming unemployed.

According to a recent survey by the Hong Kong Retail Management Association, getting workers to take unpaid leave is the most popular strategy adopted by firms to save money.

But it has become a controversial issue, with some employers accused of neglecting the legal requirement to get workers’ consent first – as claimed in Helen’s case.

Lawyer Albert So Man-kit, chairman of the Hong Kong Mediation and Arbitration Centre, said the law required a mutual agreement between employers and workers in any revision of clauses of contracts, including taking unpaid leave.

He said just asking employees to submit a leave application on their own would be disputable. He suggested bosses notify workers through a written statement instead of doing it verbally, and to state their options available.

When workers challenged employers over forced unpaid leave, businesses might need to compensate them.

“If the court really accepts that an employee did not give a genuine agreement ... theoretically, bosses need to give back the salary,” he said.

So said he used to receive one inquiry on no-pay leave per month, but since February, he has received such questions every day.

Carol Ng, chairwoman of the Confederation of Trade Unions. Photo: Winson Wong

Carol Ng Man-yee, chairwoman of the pro-democracy Confederation of Trade Unions noted more people had sought help from her organisation about being forced to take unpaid leave more than two months ago. The flood of inquiries came from all sectors, including retail, food and beverage, construction and transport.

“Some bosses note that their workers are afraid of being laid off, so they are betting on employees not daring to argue,” Ng said.

Ocean Park staff to take unpaid leave as Hong Kong attraction suffers

Of those she has spoken to at their street counters, Ng estimated at least half were already on such schemes, and at least 80 per cent of this group told her that their employers simply introduced the measure after an announcement.

Noting that most did not dare voice their concerns, Ng encouraged workers to try and bargain with their bosses. “Hongkongers are used to obeying people at the top. Although there are more people who vow they won’t keep silent, it is not in our culture [to fight with bosses],” she said.

But under this situation, there should be some understanding ... at least they still have work.

Jimmy Kwok, Labour Advisory Board

Hotel worker Helen is not alone in her employment woes. An office employee at cosmetic giant Sa Sa International Holdings said bosses asked those at managerial level or above to take two to four days of unpaid leave each month since September. It was an indefinite scheme that was set up when the months-long anti-government protests took their toll on retailers.

The worker, who did not want to be identified, said bosses did not seek their consent, only asking employees to apply for the leave. “The company earned big money after Sars ... Why ask workers to tide over difficult times with the firm after suffering financial hits for a few months?”

The employee was referring to the severe acute respiratory syndrome in 2003 that killed 299 in the city.

A closed Sa Sa shop in Causeway Bay. Photo: Nora Tam

The individual said the company did issue a statement last month requesting staff to take salary cuts and unpaid leave, and asking if they would accept.

When contacted Sa Sa International Holdings argued it had no choice as it had to keep business afloat and minimise the negative impact on staff.

Hotel workers having to take unpaid leave as occupancy rates take hit from protests

“The group had discussed the situation with employees. [All staff] then understood and supported the group’s measures,” it said, adding that it had secured the understanding and support of most of its staff in the latest round of cost-cutting measures.

Sa Sa said it saw staff as its most valuable asset and management had put itself in their shoes whenever policies were formulated and implemented.

Jimmy Kwok, employer representative of the Labour Advisory Board. Photo: Xiaomei Chen

Jimmy Kwok Chun-wah, an employer representative of the Labour Advisory Board, agreed that it would give a bad impression if bosses asked employees to take unpaid leave without first talking to them.

“If I put myself in the shoes of those who are asked to take unpaid leave, of course I would not be happy ... But under this situation, there should be some understanding ... at least they still have work.”

He said affected staff should also see things from the perspective of employers, and understand that this was an effort to retain them. But Kwok urged managers to give a better explanation when putting workers on unpaid leave.

Former Labour Party lawmaker Lee Cheuk-yan. Photo: Dickson Lee

Former Labour Party legislator Lee Cheuk-yan foresaw that workers would suffer more than in 2003’s Sars.

While educational messages on labour rights and how to bargain with employers were circulated online thanks to a boom in new unions sparked by the anti-government movement, Lee said he saw that nothing substantial had changed from 17 years ago.

He said the key was a collective bargaining mechanism, which would give workers more leverage.

“Without bargaining power, the existing mechanism cannot match people’s expectations even if they have become more aware of their rights. They will just be more frustrated.”

With no knowledge of labour rights, some grass-roots workers are the hardest hit.

Single mother Xian Min-xi, 36, has worked at a Chinese restaurant for more than four years. Her manager last month verbally asked her to take eight days of unpaid leave in February, and 16 days this month.

Xian whose salary was halved from about HK$15,000, was not working under any signed contract, and therefore had no protection.

“I don’t have any choice,” she said.

Purchase the China AI Report 2020 brought to you by SCMP Research and enjoy a 20% discount (original price US$400). This 60-page all new intelligence report gives you first-hand insights and analysis into the latest industry developments and intelligence about China AI. Get exclusive access to our webinars for continuous learning, and interact with China AI executives in live Q&A. Offer valid until 31 March 2020.

This article As coronavirus hammers businesses, some Hongkongers are questioning the legal grounds of forced unpaid leave first appeared on South China Morning Post

For the latest news from the South China Morning Post download our mobile app. Copyright 2020.