LegCo Paper No. CB(1) 1049/96-97
(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 Tuesday, 28 January 1997, at 8:30 a.m. in the Chamber of the Legislative Council Building

Members present :
    Hon Michael HO Mun-ka (Chairman)
    Dr Hon LEONG Che-hung, OBE, JP
    Hon LEE Cheuk-yan
    Hon CHAN Yuen-han
    Hon LEE Kai-ming
Members absent :
    Hon Ronald ARCULLI, 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
    Mr K F LEE
    Deputy Commissioner for Labour
    Mr William SIU
    Assistant Commissioner for Labour
    Dr W K LO
    Occupational Health Consultant Labour Department
    Mr Duncan Berry
    Senior Assistant Law Draftsman
    Mr S H MA
    Acting Chief Factory Inspector

Clerk in attendance :

    Ms Estella CHAN
    Chief Assistant Secretary (1)4

Staff in attendance :

    Mr Arthur CHEUNG
    Assistant Legal Adviser 5
    Miss Anita SIT
    Senior Assistant Secretary (1)6

I Discussion with the Administration

Matters arising from the meeting on 15 January 1997

General duties of employers and occupiers

1. Members noted the Administration’s letter of 25 January 1997 responding to members’ queries regarding the "general duties" provisions (clauses 6, 7 and 8) of the Occupational Health and Safety Bill (the Bill). The Principal Assistant Secretary for Education and Manpower (PAS/EM) stressed that the proposed "general duties" provisions were the outcome of thorough deliberations by the employer and the employee representatives of the Labour Advisory Board (LAB) and its committees. The Administration accepted this consensus of LAB. Mr LEE Kai-ming pointed out that the employee representatives on LAB were not in favour of clause 8. The clause could hardly represent a consensus reached by LAB; opposing views on the clause had all along been held respectively by the employee and the employer representatives on LAB.

2. On the effect of imposing criminal liability on employers for non-compliance with the "general duties", the Assistant Legal Adviser (ALA) advised that if none of the specific provisions in the regulations could be suitably applied in the case of an injury or death in the workplace, the authority could fall back on failure to comply with the "general duties" to prosecute the employer or occupier concerned. Even in cases where no damages had been incurred, the "general duties" provisions could also be enforced directly against unsafe or risky situations. The Senior Assistant Law Draftsman agreed with ALA’s advice in this respect. He added that whether non-compliance with the general duties prescribed in clauses 6 and 7 should be made an offence was a policy issue which he was not in a position to advise.

3. As regards the level of duty of care required to satisfy the "general duties" provisions in the Bill, ALA advised that the court would apply such criteria as were appropriate taking into account the objective of the Bill. They might not be the same as those applied in respect of the general duty of care under the common law. He also advised that as a matter of legal policy, the penalty for non-compliance with statutory "general duties" should be consistent with those in respect of the specific duties under the same Bill.

4. The Chairman referred to paragraph 5 of enclosure 1 to the Administration’s letter of 24 January 1997, and requested the Administration to elaborate on the statement that employers preferred detailed rather than general provisions. The Deputy Commissioner for Labour (Dep C for L) explained that employers hoped that all provisions regarding employers’ responsibilities for employees’ safety and health in non-industrial undertakings would be clear and specific so that employers could be certain about whether they were in compliance with the statutory requirements. If detailed requirements were not set out in the legislation, there should be some form of guidelines or codes for reference by employers.

5. Regarding employers’ concern about including a penalty clause in the proposed "general duties" provisions, PAS/EM said that the Administration appreciated that many employers of non-industrial undertakings, in particular those smaller-scale and less well-organised ones, were not familiar with the spirit and requirements under the "general duties" provisions of the Bill. It was therefore considered reasonable not to include any penalty clause in the proposed "general duties" provisions during the initial stage of implementation of the Bill. However, the Administration would review the situation after the Bill had been in force for some time.

6. PAS/EM also advised that although the future OSHO was intended to supersede the Factories and Industrial Undertakings Ordinance (FIUO) eventually, the Administration had no intention to supersede the general duties provisions of FIUO by those proposed in the present Bill. The Administration considered that there should be a transitional period before the same legal standard were to be applied to employers in both industrial and non-industrial settings.

7. Members in general considered that in order to achieve the purpose of the Bill, it should be stipulated that failure to comply with the "general duties" in clauses 6 and 7 constituted an offence with criminal sanction.

8. Mr LEE Cheuk-yan commented that if the "general duties" provisions in the Bill did not carry any criminal sanction, there would be a serious inconsistency in the law in that employers of industrial undertakings covered by FIUO and employers of non-industrial undertakings covered by the future OSHO would be subject to different legal treatment in respect of the same statutory "general duties" pertaining to employees’ safety and health at work. Miss CHAN Yuen-han commented that the Administration should have learned a lession from the history of FIUO; many problems had arisen due to the absence of directly enforceable "general duties" provisions before these were introduced in 1989. She remarked that if the Administration refused to make amendments to the effect that non-compliance with the general duties would give rise to criminal liability, she and other members sharing the same view would propose the necessary amendments.

9. PAS/EM advised that the Administration was ready to discuss with concerned parties including members of the LAB on the proposal of the Bills Committee in respect of the "general duties" provisions. In response, members suggested that the "general duties" provisions of the Bill should resemble those of FIUO, including the corresponding penalty provisions. The Administration agreed to discuss members’ views with the employer members of LAB. The outcome of these discussions would be reported back to members for further discussion.Admin

Deputations’ views expressed at the meeting on 24 January 1997

10. The Deputy Commissioner for Labour (Dep C for L) advised that the Administration would provide a written response to the views expressed by each of the deputations at the meeting on 24 January 1997.Admin

Persons exempted from the Bill

11. On the types of employees not covered by the Bill, ALA advised that there was no direct exemption provision in the Bill. The exemptions were rather disapplication resulting from the combined effect of clause 6(1) (Employer to ensure safety and health of employees) and clauses 3(1) and 3(4). These provisions stipulated that every employer was responsible for ensuring the safety and health of his employees when they were at work, and for that purpose, an employee was at work only during the time when the person was actually in a workplace. Under clause 3(1), "workplace" meant any place where employees worked, but did not include any of the following -

  1. a vehicle while it was in a public place;

  2. domestic premises at which the only employees were domestic servants;

  3. a place at which only self-employed persons worked; and

  4. any other place of a kind prescribed by a regulation for the purposes of the paragraph.

12. Members were concerned that some employees of the transport industries might not be covered by the Bill nor other ordinances. They enquired if persons working in a vehicle parked in a public place, such as those selling ice-cream in a van and those taking charge of a mobile library, would be covered by the Bill. The Administration responded that the intention was to exempt these persons only when they were working on a vehicle travelling on roads as this situation was already covered by the Road Traffic Ordinance. ALA was of the view that "workplace" as defined in the Bill appeared to exclude a vehicle whether it was moving or stationary.Admin

13. As regards persons who worked on a ship or vessel in a public place, PAS/EM advised that employees’ safety during the loading and unloading operation on board of a ship or vessel was covered by the Shipping and Port Control Ordinance (Cap. 313) (S&PCO), which was currently under general review by the Marine Department. Members then queried whether workers would also be covered by the S&PCO if they were doing jobs other than loading and unloading goods. PAS/EM advised that the policy intention regarding workers of the air, sea and land transport industries was to exempt them from the Bill only when they were working under situations the safety aspects of which were already covered by other ordinances. He undertook to clarify and review the relevant provisions of the Bill to ensure that persons employed in the transport industries should be covered either by relevant ordinances or by the Bill in respect of their safety and health at work.

Domestic servants

14. Mr LEE Cheuk-yan opined that domestic servants should be given the same legal protection as employees in other non-industrial settings. Although there would be enforcement difficulties, making the safety of the domestic workplace subject to statutory requirements would at least enable the authority to take actions when there was any breach of such statutory safety requirements. In response, Dep C for L explained that it would be very difficult to enforce statutory requirements in domestic premises, in particular in collecting evidence on breach of requirements or obligations. At present, the employment contracts of domestic servants usually included conditions pertaining to the safety and health of domestic servants at work. He remarked that it would be irresponsible for the Administration to propose legislation that was not enforceable at large. He however agreed to consider the suggestion by Miss CHAN Yuen-han and Mr LEE Kai-ming for the Administration to draw up detailed guidelines on the technical arrangements for ensuring the safety and health of domestic servants at work so that relevant conditions could be included in the employment contracts of domestic servants.

Self-employed persons

15. Regarding application of the Bill to self-employed persons, Dep C for L advised that as stipulated in clause 4, the Bill would apply to independent contractors and self-employed persons only in their capacity as employers or as occupiers of premises where workplaces were located. Because there was no employer/employee relationship with respect to self-employed persons, the Bill would not apply to self-employed persons as independent contractors.

16. Members expressed concern that there was a trend that employers terminated employment contracts with their employees so as to release themselves from their legal responsibilities as employees, but continued to employ the services of their former employees under other contractual terms. An example of this kind of employees in disguise was truck drivers whose job was to deliver concrete to and from concrete plants. The Administration responded that the question of whether there was an employer/employee relationship between two parties was determined by the relevant law, rather than just by mutual understanding between the two parties concerned. Members expressed concern that the existing legislative provisions relating to employer/employee relationship were inadequate to handle the complex economic relationships nowadays.

17. In reply to a member’s question on whether a salesperson who was the proprietor of the business at a sales counter in a department store owned by another person would be covered by the Bill, the Administration advised that the Bill should normally cover these salespersons as there were usually some other employees working in the department store. The Bill would not apply if there were only self-employed persons working at a place.

18. As regards whether a self-employed renovation worker working alone in residential premises would be covered by the Bill, the Administration advised that renovation works were already covered by FIUO. The proprietor of the premises or the contractor assigning the job to the worker should be responsible for the safety and health of the worker at work.Admin

19. The Chairman said that the Bills Committee would follow up the issue of occupational safety and health of those self-employed persons who were employees in disguise.

Onus on defendant to prove certain matters

(Clause 38)

20. On the concern expressed by a deputation that clause 38 might be too onerous for employers, ALA advised that there were similar provisions in other ordinances. The provisions did shift the burden of proof entirely on the defendant. He merely had to establish that compliance with the requirement or obligation was not practicable or was not reasonably practical, or that reasonable steps or reasonably practicable steps had already been taken to comply with the requirement or obligation.

Commencement of operation of the future OSHO

21. In response to some members’ view for doing away with or shortening the one-year grace period after enactment of the Bill, PAS/EM advised that the grace period was necessary for employers to familiarise themselves with the new legislation and for the Administration to draw up guidelines on the technical arrangements for employers to follow.

II Date of next meeting

22. The next meeting was scheduled for 19 February 1997 at 8:30 a.m.

(Post-meeting note: The meeting was subsequently postponed to 25 February 1997 at 2:30 pm.)

23. The meeting ended at 10:25 a.m.

Legislative Council Secretariat
11 March 1997

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