LegCo Paper No. CB(1)1484/96-97
(These minutes have been seen by the Administration)
Ref : CB1/BC/5/96
Bills Committee on
Occupational Safety and Health Bill
Minutes of meeting
held on Friday, 4 April 1997, at 10:30 a.m.
in Conference Room B of the Legislative Council Building
Members present :
Hon Michael HO Mun-ka (Chairman)
Hon LEE Cheuk-yan
Hon CHAN Yuen-han
Hon LEE Kai-ming
Members absent :
Hon Ronald ARCULLI, OBE, JP
Dr Hon LEONG Che-hung, OBE, JP
Hon James TIEN Pei-chun, OBE, JP
Hon Andrew CHENG Kar-foo
Hon LEUNG Yiu-chung
Public officers attending:
- Mr Herman CHO
- Principal Assistant Secretary for
Education and Manpower
- Ms Christine TANG
- Assistant Secretary for
Education and Manpower
- Mr K F LEE
- Deputy Commissioner for Labour
(Occupational Safety and Health)
- Mr William SIU
- Assistant Commissioner for Labour
- Dr W K LO
- Occupational Health Consultant
- Mr H K MAK
- Chief Factory Inspector (Support Services)
- Ms Phyllis KO
- Senior Crown Counsel
Clerk in attendance :
- Ms Estella CHAN
- Chief Assistant Secretary (1)4
Staff in attendance :
- Mr Jonathan Daw
- Consultant/Legal Service
- Ms YUE Tin-po
- Senior Assistant Secretary (1)6 (Atg)
I. Confirmation of minutes of meeting
[LegCo Paper No. CB(1)1187/96-97]
The minutes of the meeting on 25 February 1997 were confirmed.
II. Follow-up on outstanding issues
[LegCo Paper No. CB(1) 1190/96-97]
At the Chairmans invitation, the Consultant/Legal Service (CONS/LS) briefed members on the points raised in his letter to the Administration dated 21 March 1997 regarding legal aspects of the Occupational Safety and Health Bill (OSHB), and the Administrations response dated 2 April 1997.
Clause 9 - improvement notices
Referring to CONS/LS comments on clause 9 of the OSHB, the Chairman enquired about the rationale for not requiring the Commissioner for Labour (C for L) to give reasons to the employers/occupiers on improvement notices (INs) served. The Principal Assistant Secretary for Education and Manpower (PAS/EM) explained that under clause 9(2)(d), C for L had to specify the provision contravened and this should give an indication on the reason for issuing the IN. The Chief Factory Inspector/Support Services (CFI/SS) supplemented that under the existing practice of the Labour Department (LD) in enforcing the Factories and Industrial Undertakings (FIU) Ordinance, a visiting factory inspector would assess the situation and give verbal advice to the responsible persons on the remedy for the contravention before an IN was issued.
The Deputy Commissioner for Labour (Dep C for L) further advised that the arrangements regarding INs and suspension notices (SNs) were similar to those in the FIU Ordinance. The procedures and safeguards in the issue of such notices had been thoroughly discussed and agreed with the trades and LegCo at the then Bills Committee on the FIU (Amendment) Bill 1996 before the Bill was passed in July 1996. He explained that if a reason was given in an IN, the Administration would be bound by the reason given in case it decided to take legal action against an employer upon non-compliance with an IN. This would give little flexibility and complicate the prosecution process if the Administration wished to initiate prosecution on another ground. However, he stressed that the aim of issuing an IN was to provide an opportunity for the employer or occupier concerned to make improvements without having to go through prosecution.
Members accepted the Administrations explanation but requested a review of the enforcement procedures after the Bill had been in operation for some time. At the Chairmans request, the Administration agreed to give detailed guidelines to factory inspectors on verbal advices to be given to an employer or occupier when an IN was issued.
As to the need for an appeal channel in respect of an IN, Dep C for L advised that as INs were not as serious as SNs, it was unnecessary to provide an appeal mechanism for INs. The purpose of issuing an IN was to enable an employer or occupier to avoid prosecution by rectifying a hazardous situation and the IN would be withdrawn once the required improvement was made. As the Administration could initiate legal action without having to issue an IN, the trades had generally been co-operative in conforming to the requirements of INs.
Clause 10 - suspension notices
On the reason for requiring an employer or occupier who has been served with a SN to provide grounds for review while C for L was not required to give reasons for the SN, Dep C for L explained that the arrangement would give the employer or occupier an opportunity not only to say what had been done to resolve the issue but also to explain why he thought that the SN should not have been issued and should be lifted. As a SN would have serious financial consequence for an employer or occupier, the issue of a SN was a serious matter and a factory inspector had to follow strict administrative procedures in issuing a SN. The inspector had to explain to the person responsible at the point of inspection that there was an imminent risk of death or serious bodily injury on the premises where the workplace is located. He then would issue an intention notice and report the matter to the Deputy Chief Factory Inspector, who would make a decision on whether a SN should be issued. PAS/EM also advised that under clause 10(2)(c), a SN had to specify the matters that created, or were likely to create, a risk of death or serious bodily injury. This would assist an aggrieved party in making an application to the C for L for a review of the SN or in appealing against C for Ls decision. Members noted the Administrations explanation and made no further comments.
Clause 41(4) - regulation may incorporate a publication
Referring to CONS/LS remarks on the purpose of clause 41(4) of the OSHB, Dep C for L elaborated that clause 41 aimed to empower C for L to make regulations to supplement the Bills provisions and such regulations may apply, adopt or incorporate by reference publications which would mainly be codes of practice and guidelines issued by government departments or issued under other ordinances. LD would send new codes of practice or guidance materials to affected parties including listed trade and labour unions to inform them of the enforcement of new legislation or amendments to existing regulations. These publications would also be available at field offices of LD and District Offices for inspection by members of the public.
Committee stage amendments (CSAs)
PAS/EM briefed members on the third draft of the proposed CSAs tabled at the meeting. He advised that the previous draft had been revised to take into account points raised by members at the last meeting on 14 March 1997 and comments made by CONS/LS in his letter dated 21 March 1997.
The Chairman commented that the use of a dash in the third line of the proposed paragraph (aa) of the definition of "workplace" in clause 3(1) in the draft CSAs seemed unusual. The Senior Crown Counsel (SCC) explained that it was equivalent to the use of a comma, but agreed to adopt a more common practice by replacing the dash with a comma.
Concerning CONS/LS enquiry about the revised definition of "workplace" in clause 3(1) in the draft CSAs, SCC advised that the phrase "including any furniture, furnishings, and fittings within the place" had been included in the definition of "workplace" so that it would cover the meaning of the workplace as defined in the Occupational Safety and Health Regulation (OSHR).
(Post-meeting note: The Administration wrote on 18 April 1997 to advise that after further examination, the amendment to the definition of "workplace" was considered unnecessary as the items referred to in the added part of the definition would be covered by the term "plant" which had been defined and used in the Bill.)
The Occupational Safety and Health Regulation (OSHR)
PAS/EM advised that the Administration had revised the OSHR to address issues raised by members at the last meeting on 14 March 1997. Textual amendments had also been made to other provisions of the OSHR. He briefed members on the revised OSHR tabled and apologised for the late submission.
(Post-meeting note: The draft CSAs and the revised OSHR were circulated vide LegCo Paper No. CB(1)1257/96-97 dated 10 April 1997.)
Members accepted the proposed CSAs and revised OSHR and made no further comments. CONS/LS said that it would be necessary to scrutinize the legal aspect of both the English and Chinese draft CSAs and revised OSHR in detail. He would revert to the Administration for further clarification if necessary.
Members considered it unnecessary to hold any further meeting to discuss the Bill. They agreed that the Chairman should notify the House Committee of the progress made and release the slot for the next Bill on the waiting list. The Chairman advised that once the legal aspects of the CSAs and revised OSHR were in order, the Bills Committee would report its deliberations and recommendation to the House Committee accordingly.
(Post-meeting note: The Bills Committee is expected to report to the House Committee on 2 May 1997.)
The meeting ended at 12:35 pm.
Legislative Council Secretariat
5 May 1997
Last Updated on 14 October 1997