LegCo Paper No. CB(1)62/96-97
(These minutes have been seen by the Administration)
Ref : CB1/BC/38/95/2
Bills Committee on
Factories and Industrial Undertakings (Amendment) Bill 1996
Minutes of Meeting
held on Monday, 1 July 1996 at 2:30 p.m.
in Conference Room B of the Legislative Council
Members Present :
Hon Edward HO Sing-tin, OBE, JP (Chairman)
Hon Ronald ARCULLI, OBE, JP (Deputy Chairman)
Hon CHAN Yuen-han
Members Absent :
Dr Hon Edward LEONG Che-hung, OBE, JP
Hon LEE Cheuk-yan
Hon Lawrence YUM Sin-ling
Members Attending :
Hon Michael HO Mun-ka
Public Officers Attending :
- Mr Herman CHO
- Principal Assistant Secretary for Education and Manpower
- Mr MAK Sai-yiu, JP
- Assistant Commissioner for Labour
- Mr Vidy CHEUNG
- Senior Assistant Law Draftsman (Acting)
Attendance by Invitation :
- The Real Estate Developers Association of Hong Kong
- Mr S Y WAI
- Secretary General
- The Hong Kong Construction Association Ltd
- Mr Patrick W T CHAN
- Secretary General
- Construction Industry Safety-Management Association
- Mr TJHIN Yuet-hung, Jacky
Clerk in Attendance :
Staff in Attendance :
- Miss Polly YEUNG
- Mr LEE Yu-sung
- Ms Connie SZE-TO
Meeting with the Administration and deputations
(LegCo Paper No. CB(1)1723/95-96. A list of main issues discussed at the last meeting of the Bills Committee on 27 June 1996 prepared by the Secretariat and a letter from the Hong Kong Federation of Trade Unions were tabled at the meeting and attached at annex.)
Referring to the letter from the Hong Kong Federation of Trade Unions (HKFTU) tabled at the meeting which urged the Bills Committee to expedite examination of the Bill to facilitate its early enactment, the Chairman commented that while Members and the community at large was equally concerned about the importance of industrial safety and looked forward to the early passage of legislation to this effect, the Bills Committee had a duty to scrutinise the Bill carefully. Indeed, this was the third meeting held in the past ten days with the Administration and deputations to discuss the Bill. The Committee would endeavour to complete its work as early as possible.
Proposed system to issue improvement notices and suspension notices
2. Hon Ronald ARCULLI expressed support for the joint proposal from the Hong Kong Construction Association Ltd (HKCA), the Real Estate Developers Association of Hong Kong (REDA), the Hong Kong Institute of Engineers, the Hong Kong Institute of Surveyors and the Hong Kong Institute of Architects to introduce a two-tier approach under which on discovery of a work hazard, the Factory Inspector (FI) would first serve the proprietor with an improvement notice (IN) on the spot requiring rectification while he would proceed to obtain a suspension notice (SN) from the Deputy Chief Factory Inspector (DCFI) in accordance with departmental procedures. If the dangerous work situation was not satisfactorily improved during follow-up visit, a SN would be issued to order the immediate suspension of work. If the hazards had been removed, the SN would not be served. This approach was preferred to the proposed arrangement of verbally advising the proprietor on necessary remedial actions as the former would compel the proprietor to effect rectification promptly in order to comply with the IN.
3. Hon CHAN Yuen-han supported the stance of the HKFTU that the immediate issue of SN was warranted for serious cases where workers were exposed to imminent risk of serious bodily injury and it would defeat the purpose of averting serious accidents if the issue of SN had to be preceded by IN.
4. Responding to the joint proposal, Mr S Y MAK advised that it remained the Administrations view that under hazardous situations with imminent risks, it was undesirable to first serve the proprietor with an IN and await the outcome of remedial action before a SN could be issued. Instead, the FI would give verbal notice to the proprietor on the spot that a SN was being contemplated and advise the latter to stop the hazardous operation in the meantime. To expedite the issue of SN where necessary, for example, in serious cases, the DCFI would be called to the workplace to issue the notice immediately.
5. Some members and representatives of the HKCA and REDA queried the effectiveness of the verbal advice given by FIs on the spot which was not legally binding on the proprietor. In this connection, Mr ARCULLI suggested that on discovery of a dangerous work situation, a written notice should be issued to the proprietor on the spot stating the intention to issue a SN and specifying the circumstances which warranted such SN. The notice should be a statutory form, preferably as a Schedule to the Ordinance.
6. Mr MAK confirmed that there was no objection in principle to incorporate the proposed arrangements in the LDs procedural guidelines but the Administration and the Law Draftsman would need to consider the appropriateness of including the written notice as a prescribed form to the Ordinance. Mr ARCULLI, in response, indicated his intention to move the necessary Committee Stage Amendments (CSAs) to this effect.
7. Regarding a Members suggestion to prescribe in the Ordinance a shorter time-frame for the issue of SN, Mr MAK clarified that it was the LDs internal guidelines that a SN should be issued not later than 48 hours after discovery of the hazard. Nevertheless, the LD would always endeavour to issue it as early as possible. In order to allow some flexibility in enforcement, it was not advisable to stipulate the time-frame in the Ordinance but consideration would be given to stating the time-frame in the performance pledge of the LD.
Technical memorandum to the Ordinance
8. Representatives of the HKCA and REDA reiterated their concern on the need to prepare a technical memorandum (TM) to the Ordinance setting out the criteria and procedures for the issue and enforcement of SN and IN. They pointed out that TMs or Codes of Practice were available in a number of ordinances and this arrangement was preferred to internal operational guidelines which were non-statutory and therefore, not binding.
9. In response, Mr MAK and Mr Herman CHO made the following points :
- There would be difficulty in drawing up a TM which was an instrument to list technical specifications and engineering practice and it was considered inappropriate to include administrative procedures or enforcement guidelines in a TM.
- The LDs guidelines would be promulgated to ensure openness and consistent enforcement standards and consultation would be conducted with all parties concerned in finalising or proposing major changes to the guidelines.
In this connection, Miss CHAN Yuen-han cautioned that preparation of the TM, which had to be introduced as a piece of subsidiary legislation, might delay the passage of the Bill.
Offences and penalties
10. Some members maintained the view that a proprietor who had complied with an IN/SN should not be prosecuted for breaches of the safety provisions stated in the notice and suggested that a clause to this effect should be added to the Bill. Mr ARCULLI was also concerned that remedial action taken by the proprietor in compliance with an IN/SN might be construed as self-incrimination and stressed the need to include a clause to put beyond doubt that such compliance would not imply or should not be construed as admission on the part of the proprietor of having committed the offence(s).
11. In response to the concerns, Mr MAK reiterated the Administrations position that under normal circumstances, if an IN had been complied with, prosecution would not be taken out for the breaches stated therein. However, in serious cases involving SN, prosecution might still be contemplated for breaches of the relevant safety provisions. The Administration would nevertheless consider members suggestions in paragraph 10 above.
12. In this connection, ALA1 advised that, in the context of criminal law, remedial action on the part of the proprietor in compliance with an IN/SN was unlikely to be self-incriminating. In the trial of such an offence, the prosecution would still be required to provide other evidence to prove the alleged offence.
Administrative review by the Commissioner for Labour
13. On members concern about allowing 14 days for the Commissioner for Labour (C for L) to decide on an application for review and their suggestion to include in the proposed section 9C(4) the procedure for the C for L to consult an advisory panel in making the decision, Mr MAK advised that after re-consideration, the Administration had decided to give a choice to the proprietor concerned. If he chose to involve consultation of the Committee on Industrial Safety and Health of the Labour Advisory Board in the review, the review would be completed within 14 days. Otherwise, the review process would be shortened if it was undertaken by the C for L only. The options would be included as administrative procedures and incorporated into LDs guidelines.
14. Members supported the early passage of the Bill and agreed to hold a further meeting on 3 July 1996 at 10:45 a.m. to wrap up the discussion so that the Second and Third Reading of the Bill could be resumed on 10 July 1996. The Chairman also informed members that at its meeting on 28 June 1996, the House Committee had agreed to recommend to the President of the Legislative Council to waive the deadline for proposing CSAs which should expire on 1 July 1996.
15. The Administration undertook to respond to outstanding points and new suggestions made by members and deputations at the next meeting of the Bills Committee.
16. The meeting ended at 4:45 p.m.
4 October 1996
Last Updated on 11 December 1998