Isn't there no overwork death in Hong Kong?

CHAN Ka Wai

Labour Action China

November 15, 2021

 

 

 

 

 

In February this year, Mr. Tsang, a bakery worker, fell down at the workshop and lost consciousness. Eventually, he passed away. According to his family, Mr. Tsang had newly worked in the bakery shop for three months. He worked from 5am to 3pm, around 10 hours each day. Every day, he left home around 3am and were not yet back home at 6pm. In the first two months, he worked much longer than the normal working hours and it is difficult to get a day free. He was only allowed for a day leave if he could find a worker taking his place. He worked continuously for more than 2 weeks without a day off. His wife said that Mr. Tsang had often complained about his ceaseless demanding work. “He (Mr. Tsang) had never been happy after joining this bakery shop. He couldn’t stand anymore for his work.”

 

But Mr. Tsang’s death is not classified as an occupational injury. The Hong Kong Labour Department has not listed such sudden death in the recognized occupational diseases list. Therefore, Mr. Tsang’s family has hitherto received no compensation. They can only try civil claim against the employer but they need legal aid. If the legal aid application is rejected, the case could end without definite outcome.

 

All the information tells us of the fact that the death is closely related to Mr. Tsang’s job, but the reality is that all the parties concerned, including the Government, the employer and the insurance company, wish to explain their duties away. They either excuse that there is no medical evidence to prove that Mr. Tsang’s death is caused by his job, nor is “overexertion at work” a medical diagnosis.

 

A. The Hong Kong Government’s report: job is not the attribute solely responsible for the workplace sudden deaths due to cardiovascular and cerebrovascular diseases

 

1. 22% of the cases under study are beyond the overwork limits of three places in Asia

 

In Hong Kong, according to the official data, there were 200 reported deaths at workplace due to cardiovascular and cerebrovascular diseases (CCVDs) from September 2017 to November 2019. But the Hong Kong Government does not recognize the deaths as a result of overexertion at wort. Therefore, they are not classified as occupational diseases.

 

In June this year, the Government submitted the “Study on Relationship between Workplace Deaths and Work Condition” to the Legislative Council.[1] The Study is composed of two parts. The first session is the findings of the Study on Relationship between Workplace Deaths and Work Condition undertaken by the Occupational Safety and Health Council which was commissioned by the Labour Department, and the second session is the observation of the Labour Department on the matter.

 

In its beginning, the Study states,

 

“Overexertion at work” is not a medical diagnosis. The International Labour Organisation (ILO) has not drawn up any definition or guidelines on workplace deaths caused by “overexertion at work”, nor are there any internationally recognized criteria in this regard. There is also no such definition in Hong Kong. (p.1)

 

Following the government line, the Occupational Safety and Health Council (OSHC) also declines the 200 deaths as overwork deaths. But the fact the OSHC cannot decline is that before their sudden deaths, many victims had suffered from extremely long working hours. “The average daily working hours of the cases ranged from 6 to 12.9 hours in the week prior to death. Most of them worked 5 to 6 days per week and 22 to 26 days per month.” The study identified a total of 44 cases (i.e., 22%) that would have been regarded as long working hours in Japan, Korea and Taiwan. Of these 44 cases, 29 had worked more than 276 hours in the month prior to death (294 hours on average). 42 of the 44 cases had worked more than 256 hours on average per month during any of the 2 to 6 months period before their death (pp.4-5).

 

Table. 1 Maximum working hours on average per month in any of the two or more consecutive months (up to six months) before death[2]

Maximum working hours on average per month in any of the two or more consecutive months (up to six months)

No. of cases

Remark

 

 

No. of cases

Number of months calculated for the average monthly working hours

>256

42

1

1-2 months before death

1

1-3 months before death

40

1-6 months before death

256 or less

138

 

Total

180*

 

*Relevant information was not available for 20 other cases.

 

2. Interactions between work-related factors and other factors

 

The OSHC study is a “descriptive observational one”. It aimed “to collect information on the characteristics of possible attributes to such deaths. It is not designed to assess causal relationship (if any) between workplace CCVD deaths and such possible attributes, nor to determine conclusively to what the extent the different attributes might have contributed to the studied deaths.” (p.3)

 

The OSHC study aims not to identify the causal relationship of the possible attributes to the workplace CCVD deaths, nor the causal relationship among the possible attributes. In fact, the study has not confirmed the workplace CCVD deaths due to “overexertion at work”, nor has declined the deaths due to “overexertion at work”. The OSHC made the following three conclusions (p.8).

 

  1. No single factor could be pinpointed as solely responsible for the workplace CCVD deaths.
  2. None of the cases was found to have work-related risk factors alone.
  3. Work-related risk factors were not prevalently identifiable among the cases studied.

 

From the third conclusion, majority of the 200 workplace CCVD deaths were not caused by work-related factors, but does it imply that some deaths might be related to work-related factors? The first and second conclusions state that “no single factor could be pinpointed as solely responsible for the workplace CCVD deaths, but the statements do not articulate well the interaction and the causal relationship among the possible attributes to the workplace CCVD deaths, nor do they point out which attribute(s) could be crucial or conclusive to have contributed the workplace CCVD deaths.

 

B. International study: long working hour is a crucial factor

 

1. Exposure to long working hours (≥55 hours/week) is common and causes large attributable burdens of ischemic heart disease and stroke.

 

The International Labour Organization and the World Health Organization have released their joint global study on the adverse impacts of long working hours[3]. According to the joint study, in 2016, 488 million people (8.9% of the global population), were exposed to working long hours (≥55 hours/week). An estimated 745,194 deaths from ischemic heart disease (346,753 deaths) and stroke (398,441 deaths) combined were attributable to this exposure (pp.1-2).

 

The population-attributable fractions for deaths were 3.7% for ischemic heart disease and 6.9% for stroke. Both the WHO and the ILO estimate that “exposure to long working hours (≥55 hours/week) is common and causes large attributable burdens of ischemic heart disease and stroke” (pp.1-2). There is well-grounded evidence that working ≥55 hours/week is associated with a higher risk of deaths of both ischemic heart disease (17%) and stroke (35%), compared with working 35–40 hours/week (pp.3-5).

 

2. Causal relationship among attributes: long working hours cause unhealthy behaviours

 

The joint study of the two international organizations also admits that there are various attributes to ischemic heart disease and stroke, including age, sex and social-economic factors. The study submitted by the Hong Kong Labour Department states that there are various attributes to the 200 workplace CCVD deaths, including old age, overweight, physical inactivity, smoking, etc. All of them are attributes to CCVD deaths. Therefore, long working hour is not the single factor solely responsible for the 200 workplace CCVD deaths, and there is thus no overwork death in Hong Kon. The Hong Kong Government’s inaction on this matter is thus well grounded.

 

The OSHC read many references in its study. Its study on the work-related factors and non-work-related factors to, and on the factors’ interactions to, contribute to CCVD deaths heavily relied on the joint study of the ILO and the WHO on the adverse impacts of long working hours.[4] The OSHC, however, just made a parallel study of both work-related and non-work-related attributes to workplace CCVD deaths. It did not study seriously the interactions between both kinds of attributes and the possible contribution of the interactions to CCVD deaths. The OSHC just made a simple conclusion, “None of the cases was found to have work-related risk factors alone” (p.8). The OSHC study, however, did not follow the fundamental theoretical framework of the joint study of the two international organizations. The joint study took long working hours as a dominant variable and looked at carefully how this main variable interacted with other variables. On this matter, the OSHC study reported nothing.

 

Based on the case studies throughout the world, the joint study of two international organizations concludes with confidence that working long hours can increase mortality and morbidity from ischemic heart disease and stroke through psychosocial stress.

 

Two primary causal pathways are conceivable. The first is through biological responses to psychosocial stress: release of excessive stress hormones due to working long hours may trigger functional dysregulations in the cardiovascular system and structural lesions. The second pathway is through behavioral responses to stress that are established cardiovascular risk factors, including tobacco use, harmful alcohol use, unhealthy diet, physical inactivity, and resultant impaired sleep. (pp.2-3)

 

 

Theoretical framework on the correlation between long working hours and ischemic heart disease and stroke (p.2)

 

The joint study of the two international organizations relates the non-work-related attributes to CCVD deaths in the OSHC study, such as smoking, alcohol use, unhealthy diet, etc., as behavioural responses caused by long working hours. It is a part of the outcomes of long working hours, but the OSHC classifies these behavioural responses as non-work-related attributes to CCVD deaths.

 

C. Taiwan’s experience: overwork death could be classified as an occupational disease

 

1. Consider both work-related and non-work-related risk factors together

 

Now only Japan, South Korea and Taiwan have made legal provisions on burnout and overwork death. Three places’ regulations are remarkably similar to each other. The following discussion will take the regulations of Taiwan as the reference.

 

In Taiwan, according to the Occupational Safety and Health Department, Labour Ministry,[5] “burnout” refers to the cardiovascular and cerebrovascular diseases attributed by unusual happenings, short-term work overload and long-term work overload due to change in job features, long working hours and severe work pressure” (p.1).

 

The Labour Ministry’s Guidelines hold similar viewpoints with the ones in the OSHC study. Both of them maintain the fact that no medical diagnosis affirms any death due to burnout and both the Guidelines and the OSHC study admit non-work-related attributes to CCVD deaths. But, unlike the Hong Kong Government, the Taiwanese Government does not leave its hands off and does nothing. According to the Guidelines, the diseases should be classified as occupational accidents if it is proven with strong evidence that CCVDs are caused or intensified by over workload.

 

Medical diagnosis maintains that job is not a direct attribute solely responsible to the outbreaks of CCVDs. The outbreaks of CCVDs could be the result of exacerbation of diseases of individuals. In other words, it is common and natural that exacerbation of CCVD diseases bring individuals’ health into a severe condition in daily life. It is completely different from common occupational diseases. It could be classified, however, as an occupational accident if the exacerbation of CCVD is caused by job prevalently (pp.4-5). If so, the second step is the assessment of the over workload.

 

2. The burden of proof should be upon the government or employers, not on workers

 

There are various attributes to CCVDs, such as high blood pressure, diabetes. It could attribute the diseases to personal unhealthy living practices, such as smoking, overweight, physical inactivity. The Guidelines of the Taiwan Labour Ministry state clearly that it cannot be classified as an occupational disease if the CCVDs are precipitated by non-work-related factors (pp.4-5). But the Guidelines also maintains that it could be classified as an occupational disease tentatively if the conditions of over workload exist during the exacerbation of CCVDs unless it is proven that the exacerbation of CCVDs is caused by other factors. In other words, the exacerbation of CCVDs could be seen as an occupational disease if the conditions of over workload are satisfied until medical evidence proves otherwise. Here the burden of proof to decline the CCVD deaths as occupational accidents is upon the Government or employers, not upon workers (pp.4-5).

 

In Hong Kong, the OSHC study also took the Taiwan’s regulations as reference and studied seriously the three measurements of over workload: unusual happenings, short-term work overload and long-term work overload. Among the 200 workplace CCVD deaths, it seems that at least 7 cases could meet the criteria. But the Hong Kong Government in an excuse of lack of medical definition of “overexertion at work”, nor is it placed in the recognized occupational diseases list. Overwork death is not classified as an occupational disease. Thus, the families of the victims of the workplace CCVD deaths can have received no compensation even though the objective criteria of overwork death defined by other governments are met in some cases.

 

The families could only put the case to court through civil claim, but the burden of proof is fully upon workers and their families. Without the support of the Government, it is difficult and unfair for workers and their families to assume the full burden of proof in the litigations.

 

3. Other learnings from the Guidelines of the Taiwanese Government

 

Two points of the Guidelines are raised for discussion here.

 

a. Pay attention to sleeping time, not only working time

 

Taiwan’s provisions on overwork death follow the Japanese ones. It focuses on overtime working hours in the process of the examination of over workload in the cases of overwork deaths.

 

  1. more than 100 overtime working hours in the month prior to death.
  2. more than 80 overtime working hours on average per month during any of the 2 to 6 months period before their death. (pp.2-3)

 

The Guidelines of the Taiwan Labour Ministry state clearly that the counting on overtime working hours during any of the 2 to 6 months period before the death is not an average overtime working hours of 6 months but see if the overtime working hours are more than 80 hours in any month. Here is an implication on sleeping time of individual workers. Both 40 normal working hours a week and 100 overtime working hours a month will lead a person to sleep less than 5 hours a day. Evidence of Japanese studies suggests that it is correlated significantly with exacerbation of CCVDs when individuals sleep for 4-6 hours a day.

 

Over exhaustion due to long-term over workload is closely related to inadequate sleeping time and inadequate sleeping time or impaired sleep is correlated significantly to exacerbation of CCVDs. The measurement of “burnout”, in fact, is eventually a medical diagnosis of the risk factor(s) of exacerbation of CCVDs. The exacerbation of CCVDs could happen if a person suffers from long-term inadequate sleeping time or impaired sleep (pp.2-3).

 

b. Besides working hours, work content and mental pressure should be considered together.

 

In assessment of the correlation of exacerbation of CCVDs and job, a comprehensive approach should be taken on the examination of the three risk factors, unusual happenings, short-term work overload and long-term work overload.

 

The Guideline of the Taiwan Labour Ministry stipulates that the three risk factors should be examined together in assessment of over workload (pp.2-3).

 

  1. Unusual happenings: examine if the victim works continuously or undergoes usual natural disaster(s) or severe human-made accident(s) during the period from a day before the outbreak of CCVD to the time of the outbreak. On this matter, three areas should be examined carefully, including mental distress, physical distress and change in job environment.

 

  1. Short-term work overload: examine if a worker conducts exceptionally heavy work-loaded jobs in a week before the outbreak of CCVD (the day of the outbreak of CCVD inclusive). “Exceptionally heavy workload” is something in comparison of the normal workload.

 

  1. Long-term work overload: examine if a worker is in a long-term labouring and severe exhaustion due to heavy workload during 1-6 months before the outbreak of CCVDs (the day of the outbreak of CCVD exclusive).

 

Besides working hours, the work content, such as irregular working hours, job on shift, job environment, and mental pressure should be also examined together. The causal relationship between job and the outbreaks of CCVDs must be examined by specialists of occupational medicine (pp.2-3).

 

In examination of exceptional cases, where both work-related (work overload) and non-work-related (environmental or personal factors, such as temperature change or personal physical exercises) attributes are identified to the outbreaks of CCVDs, a comprehensive examination should be conducted by specialists of occupational medicine. Usually, the “50%-probability” norm will be carried (p.4). It means that after counting all attributes in to CCVD deaths together, if the work-related factors are assessed at least half of probability to contribute to the outbreaks of CCVDs, the outbreaks of CCVDs should be as occupational diseases.

 

D. The Hong Kong Government should make provisions to regulate the working hours.

 

Both the joint study by the ILO and the WHO and the provisions in Taiwan do not loosen the criteria in examination of overwork deaths. They do set a high hurdle on this matter, but they take an active position towards the assessment of the correlation of long working hours and CCVD deaths with cautious medical and scientific examination.

 

Taiwan, South Korea and Japan, in where the provisions on overwork deaths have been made, have tried by various means to regulate the working hours in order to reduce the cases of overwork deaths. Long working hours is not the attribute solely responsible to CCVD deaths, but it is still a significant risk factor. The Hong Kong Government declines to affirm the correlation between long working hours and workplace CCVD deaths, but at least it should make provisions to regulate working hours so as to avoid the tragedies of workplace deaths, such as Mr. Tsang’s case.

 


[1] Labour and Welfare Bureau and Labour Department, “Study on Relationship between

Workplace Deaths and Work Condition” (June 2021), https://www.legco.gov.hk/yr20-21/english/panels/mp/papers/mp20210615cb2-1166-5-e.pdf, accessed on Nov. 14, 2021.

[2] Ibid., Annex 1, Table 1.5

[3] Frank Pega, et.al. “Global, regional, and national burdens of ischemic heart disease and stroke attributable to exposure to long working hours for 194 countries, 2000–2016: A systematic analysis from the WHO/ILO Joint Estimates of the Work-related Burden of Disease and Injury”, Environmental International, Vol.154 (September 2021), 106595. https://doi.org/10.1016/j.envint.2021.106595, accessed on Nov. 14, 2021.

[4] See Labour and Welfare Bureau and Labour Department, “Study on Relationship between

Workplace Deaths and Work Condition” (June 2021), annex 3, pp. ii-iii.

[5] Occupational Safety and Health Department, Labour Ministry, “Official Guidelines on Exacerbation of Cardiovascular and Cerebrovascular Diseases (Excluding the Diseases Caused by External Factors), Q & A” (Oct 5, 2018) (in Chinese).
https://www.osha.gov.tw/media/8058/%E8%81%B7%E6%A5%AD%E4%BF%83%E7%99%BC%E8%85%A6%E5%BF%83%E8%A1%80%E7%AE%A1%E7%96%BE%E7%97%85%E8%AA%8D%E5%AE%9A%E5%8F%83%E8%80%83%E6%8C%87%E5%BC%95q-a-1071015%E7%89%88.pdf, accessed on Nov 14, 2021.

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