LegCo Paper No. CB(1)1420/96-97
(These minutes have been seen
by the Administration)
Ref : CB1/PL/MP/1
LegCo Panel on Manpower
Minutes of special meeting held on Tuesday, 8 April 1997, at 10:30 a.m. in the Chamber of the Legislative Council Building
Members present :
Hon CHAN Yuen-han (Deputy Chairman)
Hon Michael HO Mun-ka
Hon James TIEN Pei-chun, OBE, JP
Hon LEE Cheuk-yan
Hon CHAN Wing-chan
Hon CHENG Yiu-tong
Hon LAW Chi-kwong
Hon LEUNG Yiu-chung
Hon Bruce LIU Sing-lee
Hon TSANG Kin-shing
Members absent :
Hon LAU Chin-shek (Chairman)
Hon NGAI Shiu-kit, OBE, JP
Hon SZETO Wah
Hon Ronald ARCULLI, OBE, JP
Dr Hon LEONG Che-hung, OBE, JP
Hon CHEUNG Man-kwong
Hon Frederick FUNG Kin-kee
Hon Henry TANG Ying-yen, JP
Hon LEE Kai-ming
Hon MOK Ying-fan
Public officers attending :
Attendance by invitation :
- Miss Esther LEUNG
- Principal Assistant Secretary for
- Education and Manpower
- Mrs Jenny CHAN
- Assistant Commissioner for Labour (Acting)
Clerk in attendance :
Employers Federation of Hong Kong
- Ms May CHOW
- Executive Director
Hong Kong Employers of Overseas Domestic Helpers Association
- Mrs Betty YUNG-MA Shan-yee
- Mr Joseph LAW
- Vice Chairman
- Ms Josephine ONG
- Member, Executive Committee
The Hong Kong Federation of Trade Unions
- Mr IP Wai-ming
- Senior Secretary
- Mr LAI Man-pui
- Secretary of Rights and Benefits Committee
Hong Kong Confederation of Trade Unions
- Ms CHEUNG Lai-ha
- Mr MUNG Siu-tat
- Executive Secretary
The Federation of Hong Kong and Kowloon Labour Union
- Mr CHAN Wai-lun
- Social Affairs Committee Chairman
- Mr POON King-shun
- Financial Affairs Officer
Staff in attendance :
- Miss Polly YEUNG
- Chief Assistant Secretary(1)3
- Ms Anita HO
- Assistant Legal Adviser 5
Mr Daniel HUI
- Senior Assistant Secretary (1)7
As the Chairman was out of town, the Deputy Chairman took over the chair. The Deputy Chairman said that the main purpose of the special meeting was to receive representations from non-government organisations on the Labour Relations (Amendment) Bill 1997, the Trade Unions (Amendment) (No.2) Bill 1997 and the Employment (Amendment) (No.2) Bill 1997.
Meeting with non-government organisations
Employers Federation of Hong Kong (EFHK)
(LegCo Paper No. CB(1)1219/96-97(01))
2. Ms May CHOW presented the Federations position outlined in its written submission in support of the proposed amendments to the Labour Relations (Amendment) Bill 1997 and the Trade Unions (Amendment) (No.2) Bill 1997. Regarding the Employment (Amendment) (No.2) Bill 1997, the EFHK supported the spirit of protecting employees against unscrupulous employment practices, especially those evading long service payment (LSP) and severance payment (SP). Their specific comments on the Employment (Amendment) (No.2) Bill 1997 were as follows:
- small enterprises and employers of domestic helpers were concerned about possible abuse of the law by employees. It was hoped that the concerns of these two groups would be taken into account when fine-tuning the legislation;
- it was unfair to put the burden of proof solely on employers with regard to the provision of benefits and prosecution of offences; and
- whilst there was no objection to the proposal that the court could make an order for reinstatement, it was crucial that such a reinstatement order was subject to agreement by both the employer and employee.
Hong Kong Employers of Overseas Domestic Helpers Association (HKEODHA)
(LegCo Paper No. CB(1) 1236/96-97 (02))
3. Representatives of the Association presented their views as contained in the Associations written submission tabled at the meeting and reiterated their concerns as follows:
- the Association was most concerned about the Employment (Amendment) (No.2) Bill 1997. They did not object to the provisions in the Bill per se, but strongly urged that the amendments, particularly the proposed Part VIA, should not cover overseas domestic helpers. Most employers of overseas domestic helpers were middle-income earners and the proposed penalty was too draconian. Moreover, the special nature of the working relationship between domestic helpers and their employers would make compliance and enforcement of the provisions extremely difficult;
- the Governments argument against excluding overseas domestic helpers from the Bill by reason of the International Labour Convention (ILC) No. 97 was ill-founded. It was stipulated in the said Convention that migrants for employment should not be treated less favourably than local workers and the term migrant should refer specifically to immigrants, not any overseas workers. Hence, it was in order to exclude overseas domestic workers from certain provisions of the Bill; and
- the Association was not represented on the Labour Advisory Board (LAB) and the consensus reached at the LAB had not taken into account their special circumstances. The Legislative Council should consider their views and scrutinise the Bill carefully.
Hong Kong Federation of Trade Unions (FTU)
4. Representatives of the FTU presented the following views:
- the three Bills should be enacted as soon as possible as it had been observed that during this interim period, some unscrupluous employers had started to dismiss workers who would meet the qualifying service should the amendments to the Employment Ordinance come into effect. The problem was particularly serious in the catering industry;
- the proposed 24-month qualifying service for an employee to become entitled to employment protection under Part VIA of the Employment (Amendment) (No.2) Bill 1997 should be reduced to 12 months; and
- the five reasons for dismissal of employees under clause 32K of the Bill might result in a lot of disputes over the reasonableness or otherwise of dismissal.
Hong Kong Confederation of Trade Unions (CTU)
(LegCo Paper No. CB(1) 1236/96-97 (01))
5. Representatives of the CTU presented salient points of their written submission tabled at the meeting. They urged for early passage of all the three Bills and suggested that the Employment (Amendment) (No.2) Bill 1997, if not immediately enacted, should take retrospective effect. Their comments also included the following:
- the Labour Relations (Amendment) Bill 1997 should also confer on employees the right to strike;
- the five valid reasons for dismissal under clause 32K of the Employment (Amendment) (No.2) Bill 1997 were very vague and might be abused by unscrupulous employers. The Administration should consider adopting the wording of section 9 of the Employment Ordinance in defining the reasons for dismissal of employees; and
- the order for reinstatement should not be subject to mutual agreement of the employer and employee.
The Federation of Hong Kong and Kowloon Labour Unions (FHKKLU)
(LegCo Paper No. CB(1) 1219/96-97 (02))
6. Mr. CHAN Wai-lun briefed members on the views of the FHKKLU as detailed in its written submission. Although the Bills fell short of its full expectation, the FHKKLU considered that they should be passed as soon as possible in order to safeguard protection for employees. Mr CHAN also raised the following concerns:
- the law should provide expressly for employees right to strike as contained in article 27 of the Basic Law of Hong Kong;
- as regards the appointment of mediators by the Commissioner for Labour, the legislation should be more specific on the qualification requirements of the mediators;
- the 24-month qualifying period for entitlement to employment protection under the proposed section 32A in Part VIA of the Employment (Amendment) (No.2) Bill 1997 should be removed; and
- the five valid reasons for dismissal as stated in the proposed section 32K was too vague.
Meeting with the Administration
7. In reply to the Deputy Chairman, the Principal Assistant Secretary for Education and Manpower (PAS(EM)) confirmed that the proposals contained in the three Bills had been endorsed by the LAB.
8. Mr LEE Cheuk-yan asked whether the provisions under the Employment (Amendment) (No.2) Bill 1997 had accurately reflected the consensus of the LAB. He recalled that one valid reason for dismissal of employees as endorsed by the LAB was "misconduct of the employee" but not the "conduct of the employee" as presently drafted in Part VIA of the Bill. The Assistant Commissioner for Labour (Acting) (AC for L (Acting)) replied that while the LAB had agreed on the principles and spirit of the legislative amendments, the Administration had preferred to draft the legislation in more neutral terms and therefore, the word "conduct" was used.
||9. In this connection, Mr LEUNG Yiu-chung informed the meeting that in the UK, these was a code of practice on fair/unfair dismissal. He enquired whether the Labour Department (LD) would prepare similar guidelines on the valid reasons for dismissal. AC for L(Acting) advised that when amendments were introduced to the Employment Ordinance, it was the LDs practice to publicise these provisions through information pamphlets and guidenotes. The LD was in the course of preparing guidelines on the reasonableness of dismissal or contract variation. She also pointed out that the guidelines were not legally binding and the final interpretation on what constituted reasonable dismissal or otherwise rested with the court. As requested by members, the LD would try to consult both the employer and employee associations on the draft guidelines and expedite their preparation.|
10. As regards the variation of terms in a fixed-term contract, AC for L(Acting) clarified that the variation had to be agreed to by the employee. However, if the varied terms represented an improvement to existing terms and the employee refused to accept the improved terms, he might not be entitled to LSP as provided under part VIA of the Bill.
11. Mr LEE reiterated his concerns that if enactment of the Employment (Amendment) (No.2) Bill 1997 was delayed, unscrupulous employers would make use of the interim to dismiss employees who could almost fulfil the requisite length of service in order to evade the payment of LSP. Pending the passage of the Bill, he enquired about the possibility of fixing a retroactive cut-off date after which all dismissals would be subject to Part VIA of the Bill. The Assistant Legal Adviser (ALA) advised that laws rarely took retrospective effect. She also reminded members that the substantive provisions of the Bill were still being studied and they had not yet been finalised. AC for L(Acting) supplemented that there had not been any precedent for labour laws to take effect retrospectively.
12. To follow up on the points raised by the HKEODFA, Mr James TIEN enquired about the application of ILC97 in overseas countries and the Administrations comments on the suggestion of exempting overseas domestic helpers from Part VIA of the Employment (Amendment)(No.2) Bill 1997. He was also concerned about whether the LAB had taken into account the special circumstances of the employment relationship between overseas domestic helpers and their employers in endorsing the present legislative amendments.
13. In reply, PAS(EM) and AC for L (Atg) confirmed the Administrations position as follows :
- ILC97 applied not only to immigrants but to all overseas workers. All along, the Administration had adhered to the principle that imported workers should be treated no less favourably than local workers. Imported workers were entitled to the same statutory protection and benefits as their local counterparts;
- since its enactment in 1968, the Employment Ordinance had been applicable to domestic helpers; and
- the Administration had no intention at present to exclude overseas domestic helpers from the Amendment Bill.
||On the application of ILC97 in overseas countries with regard to statutory protection for migrant workers, the Administration undertook to provide a written reply after the meeting.|
Deliberations of members
14. Members noted that with the exception of the HKEODHA, other organizations present at the meeting by and large supported the three Bills and urged for their early passage. Their concerns were shared by the majority of members present at the meeting who were not in favour of setting up a Bills Committee. Mr James TIEN added that he would support the Bills on the understanding that the Panel members present would not propose Committee stage amendments altering substantially the present proposed amendments.
15. ALA5 informed the meeting that she was seeking clarification from the Administration on a number of law points and some drafting aspects of the Bills. The Administrations reply was still awaited. Members discussed and agreed that the actual wordings of the Bills should accurately reflect the consensus of the LAB reached on the issues concerned. The Administration was asked to provide the necessary information to facilitate ALA5s examination of the Bills.
||16. On the HKEODFAs suggestion of excluding overseas domestic helpers from the Employment (Amendment) (No.2) Bill 1997, Members acknowledged that this would be a major change from the existing policy and would raise complicated issues to be addressed in the wider context of labour legislation. It would not be appropriate to deal with this major policy change without in-depth study and consultation. The Administration was thus requested to critically review its labour policy with respect to overseas domestic helpers in due course.|
17. After discussion, members agreed to the following courses of action :
- to recommend to the House Committee that the Panel considered it unnecessary to form a Bills Committee to study the Bills; and
- ALA5 to continue to clarify the law points and drafting aspects of the Bills so as to ensure that the actual wordings would accurately reflect the consensus of the LAB reached on the issues concerned.
18. The meeting ended at 12:45 pm.
Legislative Council Secretariat
2 May 1997
Last Updated on 21 August 1998