Thu, 04/08/2021 - 17:32 — lac-admin
2021-04-08
1. Background
Long work hours and workplace-induced stress have been commonplace among employees in Hong Kong. Hong Kong has always, albeit notoriously, ‘championed’ most surveys on work hours and the resulting mental stress, making worsening labour wellbeing a worrisome phenomenon. Back in 2010, council members of this city discussed heatedly in the Legislative Council, Hong Kong’s quasi-parliament, that the existing Employees’ Compensation Ordinance shall extend its protection to cover mental illnesses directly caused by employment or mental impairment directly caused by an accident in the course of employment. When countered, then-Secretary for Labour and Welfare answered in a slighting attitude that while acknowledging the effort of the International Labour Organisation in enlisting post-traumatic stress disorder (PTSD) as an occupational disease, “LD [the Labour Department] will continue to keep in view international development in this respect and take account of Hong Kong's actual circumstances in considering whether it would be necessary to amend the ECO to prescribe PTSD as an occupational disease.”
Now more than 10 years have elapsed, what was said by the Secretary for Labour and Welfare has yet to be actualised. The labour protection laws in Hong Kong are still in danger of lagging behind international standards and workplace changes. Sad still, labour wellbeing continues to deteriorate with no sufficient compensation accorded to the workers. Earlier this year, a survey jointly conducted by Hong Kong Public Opinion Research Institute and Hong Kong Christian Industrial Committee revealed that more than one-third of the work population often felt mentally drained at work, with the heavy workload, long work hours and high work demands being the main causes.
2. Hong Kong’s Employees’ Compensation Ordinance
Under section 5 of the Employees’ Compensation Ordinance (Cap. 282), employers are required to pay compensation should personal injury by accident arising out of and in the course of employment is caused to an employee. Legislative Council records show that since the enactment of the Ordinance, the Government has made a few attempts to amend the amount of compensation payable to the employees. The amendments, lamentably, did not touch upon the principle and scope of compensation, making the substantive part of it unresponsive to workplace changes.
Nonetheless, following changes in socio-economic structure and the decline of the manufacturing industry in Hong Kong, most Hong Kong people are now engaged in the service industry, which is often characterised by long work hours and high work pressure, making them more susceptible to mental stress and illness such as burnout, anxiety and depression. Under the COVID-19 pandemic, most workers have abruptly changed to working remotely. This new normal, however, resulted in lengthened work hours. The outdated Ordinance has failed to keep up with the changes, as evidenced by the fact that workplace-induced mental illnesses still have no place in both the First Schedule (Types of Injuries) and the Second Schedule (Occupational Diseases) to the Ordinance, despite their common occurrence at the workplace.
3. Legislative Obstacles
While employees suffering from mental illnesses as a result of workplace stress is becoming increasingly ubiquitous, it is not easy, as the Government claimed, to extend the scope of occupational diseases to cover mental illnesses. From a legislative perspective, the Government has set stringent, if not rigid, criteria in assessing workplace injuries and diseases: “prescription of a disease as an occupational disease is based on the criteria of whether workers engage in a certain occupation in Hong Kong have a significant and recognised risk of contracting the disease; and whether a causal relationship between the disease and the occupation can be reasonably presumed or established in individual cases.”
In other words, the Government will only consider classifying a disease as an occupational disease if it has established that there is a significant or established risk of the disease in a particular occupation and that there is a reasonably presumed causal relationship between the work and the mental illness. It might seem understandable that a set of criteria should be adopted when considering the inclusion of a disease as an occupational disease. Unfortunately, the framework is insensitive to the changing economic paradigm and the imminent mental and psychological needs of workers as a result of the changes.
Firstly, mental illnesses do not exist only in a particular occupation. As many opinion polls have shown, working hours, workload, and the relationship between supervisors and subordinates can all lead to symptoms, such as overwork, anxiety and depression. What the government needs to examine is whether the current legislative standards still reflect the reality and respond to the difficulties faced by workers. It is futile to use an outdated set of criteria to assess the prescription of mental illness as an occupational disease in the face of the aforesaid changed circumstances.
On the contrary, Taiwan has demonstrated its competence in addressing workers’ needs by formulating the “Guidelines for the Identification of Mental Illnesses Caused by Work-Related Stress Events” (the “Guidelines”) (「工作相關心理壓力事件引起精神疾病認定參考指引」) to inform the Labour Tribunal and medical practitioners of the ways to evaluate the work-relatedness of a person’s mental health problems . The Guidelines stipulated a number of factors that are likely to induce stress at work, including: (i) (serious) illness or injury; (ii) business-related incidents resulting in injury or death, major accidents; (iii) workplace misconduct affecting the company's operations; (iv) being unreasonably asked to leave; and (v) being subjected to harassment, bullying or violence. It also specifies that these sources of stress may come from a variety of jobs but are not exclusively found in a particular field/industry.
Taiwan, which has been repeatedly cited as a hallmark in terms of labour protection, presents a compelling message to the Hong Kong Government that there exists a dire need for it to address the inadequacies of the current legislation and to review the criteria and mechanism for the inclusion of occupational diseases, rather than delaying legal overhaul after a decade of prevarication.
Secondly, the Government has all along been turning a blind eye to workers’ request to include mental illness as an occupational disease on the grounds that it is difficult to establish the link between work and illness. Admittedly, the causes of mental illness can be complex, and it may not be easy to prove the causal link between the two as individual factors, such as personality and resilience, could potentially affect the onset of mental illness. That said, this does not excuse the Government from shirking its responsibility to explore the association between work and the increasingly common problems of stress and burnout at work.
In a Workplace Safety and Insurance Act Tribunal Decision No. 2157/09 [1] handed down in 2014, the Tribunal considered that Ontario’s Workplace Safety and Insurance Act (the Act), which limits employees’ entitlement to benefit to stress that arises from “an acute reaction to a sudden and unexpected traumatic event” infringes the workers’ right to equality under section 15 of the Canadian Charter of Rights and Freedoms. Moreover, such violation is not justified by section 1 of the Charter, hence relevant sections of the Act (subsections 13(4) and (5)) was rendered unconstitutional [2].
In the above case, the Tribunal looked into details the causal relationship between work and mental illness. The Attorney General maintained its position that “there are no established methods to validly and reliably establish work-relatedness of mental disorders except in case of acute mental stress.” [3] The worker’s representative, speaking on the contrary, submitted that notwithstanding the difficulty in establishing the causal link, the inherent difficulty did not render the finding of causal connection impossible, further citing expert evidence that the restriction in the provision creates a risk of “under inclusion,” thereby denying those who are truly “deserving” of the entitlement. [4] The representative further emphasised that the difficulty in proving the causal linkage exists in “both physical and mental injuries cases and there is a lack of a valid and reliable objective method for determining causation in many physical injury claims.” [5]
The Tribunal ultimately sided with the worker’s representative and concluded that it was possible to ascertain the temporal sequence of the stressors and the effects on the claimant’s mental wellbeing by looking into her medical history and information provided by other informants. The Tribunal was also satisfied that qualified psychiatrists’ clinical experiences and training would also allow them to give a reliable conclusion as to the question of causation. [6]
Third, there should not be unjustifiable differential treatment to claims by workers with physical and mental disorders arising from work. Under the original subsections 13(4) and (5) of the Act, claimants with mental disability are entitled to benefits when mental stress is attributed to a specific injuring process: “an acute reaction to a sudden and unexpected traumatic event.” The provision, in effect, created a limited set of circumstances to allow for mental stress claims, which the same was not seen in physical injury-related claims. [7]
The Tribunal eventually concurred with the worker’s representative and held that excluding the gradual onset of mental injury from being one of the criteria for entitlement benefit under the legislation created a differential treatment. Such exclusion perpetuated stereotype and stigma against persons with mental stress that mental illness is caused by personal weakness and that claimants are undeserving of equal compensation under the legislative scheme comparing with persons with physical disability. [8]
Unlike places such as Ontario where there is an established workers’ compensation scheme, Hong Kong still lacks such mechanism through which workers can make mental injury claims in relation to workplace stress. Therefore, it is too premature for us to engage in the similar discussion on the differences in mental injury provisions vis-à-vis physical injury provisions. Another equally compelling question is when the Government would be ready to include PTSD as an occupational disease.
4. Conclusion
Hong Kong is an internationally renowned metropolis with notorious labour protection mechanisms. Imminent issues, such as maximum working hours, and the right to collective bargaining, have been delayed time and again by the Hong Kong Government. Coupled with a yet-to-be-developed trade union system, employees are often fighting alone at the workplace. It is imperative for the Government to take heed of employees’ predicament and to mend the loopholes in the current legislation to provide basic protection to workers facing immense workplace stress. Only in this way will employers also acknowledge and take steps to defuse the mental health time bomb.
[1][2014] O.W.S.I.A.T.D. No. 1048
[2]n 2, paragraph [310]
[3]Ibid., paragraph [120]
[4]Ibid., paragraph [84]
[5]Ibid., paragraph [99]
[6]Ibid., paragraph [99]
[7]Ibid., paragraphs [186]-[187]
[8]Ibid., paragraph [207]
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