LegCo Paper No. CB(1) 1199/96-97
(These minutes have been seen by the Administration)
Ref : CB1/PL/MP/1

LegCo Panel on Manpower

Minutes of Meeting
held on Monday, 24 February 1997,
at 2:30 p.m.
in the Chamber of
the Legislative Council Building

Members Present :

    Hon LAU Chin-shek (Chairman)
    Hon SZETO Wah
    Hon CHEUNG Man-kwong
    Hon Michael HO Mun-ka
    Hon Henry TANG Ying-yen, JP
    Hon James TIEN Pei-chun, OBE, JP
    Hon LEE Cheuk-yan
    Hon LAW Chi-kwong
    Hon LEE Kai-ming
    Hon LEUNG Yiu-chung
    Hon Bruce LIU Sing-lee
    Hon TSANG Kin-shing

Members absent :

    Hon CHAN Yuen-han (Deputy Chairman)
    Hon NGAI Shiu-kit, OBE, JP
    Hon Ronald ARCULLI, OBE, JP
    Dr Hon LEONG Che-hung, OBE, JP
    Hon Frederick FUNG Kin-kee
    Hon CHAN Wing-chan
    Hon CHENG Yiu-tong
    Hon MOK Ying-fan

Public officers attending :

Items IV & V

Mr Matthew CHEUNG, JP
Deputy Secretary for Education and Manpower

Item IV

Miss Esther LEUNG
Principal Assistant Secretary for Education and Manpower
Mr TSANG Kin-Woo
Assistant Commissioner for Labour

Item V

Deputy Commissioner for Labour
(Occupational Safety and Health)
Mr Tony Reynalds
Principal Assistant Secretary for Education and Manpower
Ms Christine TANG
Assistant Secretary for Education and Manpower

Clerk in attendance :

Miss Polly YEUNG
Chief Assistant Secretary(1)3

Staff in attendance :

Mr LEE Yu-sung
Senior Assistant Legal Adviser
Ms Connie SZETO
Senior Assistant Secretary(1)5

I Confirmation of minutes of meeting and matters arising

The minutes of the special meeting of the Panel held on 13 January 1997 were confirmed.

II Date and items for discussion for next meeting

2. Members agreed to discuss the following items at the next Panel meeting to be held on Monday, 24 March 1997, at 2:30 pm.

  1. Implementation of the Supplementary Labour Importation Scheme; and

  2. Scope of "employee" as defined under the Employment Ordinance (EO).

3. Members noted that Mr MOK Ying-fan might wish to brief members at the next meeting on his proposed Member's Bill to amend the EO to provide for paternity leave.

4. Mr LEUNG Yiu-chung raised concerns on the following issues-

  1. the latest position on the review of the discriminatory provisions under the Women and Young Persons (Industry) Regulations; and

  2. observations that recently, Presiding Officers at the Labour Tribunal awarded high costs against employee-claimants who had lost their cases.

The Chairman directed that the Administration should be requested to provide an information paper on these issues for members' reference.

III Information papers issued since last meeting

5. A paper on "Summary of issues considered by the Labour Advisory Board (LAB) on 24 January 1997" had been issued for general information.

IV Briefing on legislative proposal

Employment (Amendment) Bill 1997
(LegCo Paper No. CB(1)715/96-97(02); Administration's information paper tabled at the meeting and subsequently issued vide LegCo Paper No. CB(1)943/96-97(01))

6. Members noted that a Bills Committee had been formed to study the captioned Bill.

7. At the Chairman's invitation, Mr LEE Cheuk-yan briefed members on his Bill which sought to provide, inter alia, civil remedies for anti-union discrimination and to increase the maximum penalty to a fine of $200,000 and one year's imprisonment. The Deputy Secretary for Education and Manpower (DS for E&M) apologised for the delay in providing the information paper which was tabled at the meeting but informed members that the Administration's views on the Bill had been set out in the press statement which was copied to all LegCo members on 14 February 1997 when it was issued. He then explain why the Administration objected to the Bill as set out in the paper. In the ensuing meeting, members deliberated on the following issues contained in the Bill.

Re-employment and promotion as proposed remedies

8. Some members supported the proposed remedy of "re-employment" and noted that the right to reinstatement was also provided for under the Disability Discrimination Ordinance.

9. Responding to members' views, DS for E&M advised that the Administration would not support compulsory re-employment without the consent of both the employer and employee as this would not be conducive to harmonious labour relations. Moreover, empowering the court to make such an order would amount to undue interference with staffing decisions in the private sector. In order to improve protection of employees against anti-union discrimination, the Administration would introduce a comprehensive legislative package by the end of March 1997 and one of the proposals would be to provide for re-employment with the consent of both the employer and employee. DS for E&M reiterated the Administration's stance that it would not support the Member's Bill as it had not been considered by the LAB.

10. Some members, however, pointed out that in circumstances where a union leader was victimised and dismissed, it would be justifiable for the court to order for his re-employment even at the expense of harmonious labour relations as otherwise, union activities would be stifled. They urged the Administration to re-consider Mr LEE's proposal from this perspective.

11. Mr Bruce LIU expressed serious reservation on the proposed remedy that the court could order the employer to promote the employee. In response, Mr LEE Cheuk-yan clarified that the proposal was to cater for situations in which an employee had been demoted by his employer for reason of trade union membership or activities. In this connection, the Chairman and Mr LIU suggested that the wordings of the proposed section 21G(2)(d) might not adequately reflect such intention and refinement would be necessary.

Overriding power of section 21G(2)(h)

12. Referring to the decision of the Standing Committee of the National People's Congress to recommend the repeal of certain provisions in the Bill of Rights Ordinance which could prevail over other ordinances, Mr Bruce LIU expressed concern that the proposed section 21G(2)(h) of the Bill, which had similar overriding power, might risk being repealed in due course. In reply, Mr LEE Cheuk-yan remarked that his proposal was not unprecedented as there were similar provisions in the Personal Data (Privacy) Ordinance. Nevertheless, he took note of Mr LIU's concern and would seek further legal advice.

Costs of proceedings

13. Addressing Mr CHEUNG Man Kwong's concern that the proposed section 21J stipulating that "each party to the proceedings shall pay his own costs" might discourage employees from bringing their case to court, Mr LEE Cheuk-yan explained that such a requirement was aimed at making employees more prudent in initiating civil proceedings so as to minimise unfounded or frivolous claims.

14. In reply to Mr CHEUNG Man-kwong's enquiry on the usual court practice on costs, the Senior Assistant Legal Adviser (SALA) advised that unless stated otherwise in the ordinance concerned, the party who had lost his case would be liable to pay costs. At Mr CHEUNG's request, SALA undertook to check whether there were provisions similar to the proposed section 21J in other ordinances and to provide the information after the meeting.

(Post-meeting note : The information provided by SALA was circulated vide LegCo Paper No. CB(1) 954/96-97.)

V Funding for the Occupational Safety and Health Council

(Administration's information paper tabled at the meeting and sequentially issued vide LegCo Paper No. CB(1)943/96-97(02))

15. Messrs LEE Kai-ming and TSANG Kin-shing declared that they were members of the Occupational Safety and Health Council (OSHC). They pointed out that as a result of the reduction in income derived from the Employees' Compensation Insurance Levy (the Levy) and the lack of Government funding, the planned programmes of the OSHC for 1997-98 had to be curtailed. They therefore expressed grave doubt on whether the Council would have the necessary resources to promote the Occupational Safety Charter and the safety requirements under the Occupational Safety and Health Bill to be enacted soon. Members present at the meeting concurred that the Administration should arrange to provide sufficient funds for the Council to meet its immediate needs and to undertake further responsibilities in the provision of training and publicity on occupational safety in the non-industrial sector.

16. Responding to members' concern about the financial position of the OSHC, DS for E&M explained that the drop in Levy income in recent years was directly related to the decrease in the employee's compensation insurance premium which formed the base on which the Levy was charged. The lower insurance premium had resulted from the predominance of the service industry which was less accident-prone and the keen competition among insurers for customers. However, it was expected that the Levy income would stabilise at about $25 million in 1997-98 following the insurance industry's recommendation to increase the premium by about 10.8% in 1997 and the commencement of large-scale infrastructural projects. While the estimated expenditure of the Council in 1997-98 would amount to $45.2 million, the Council's estimated income of $37.5 million and accumulated surplus of $9.5 million would bring about an accumulated balance of about $1.8 million by the end of the financial year.

17. As regards the Administration's commitment to the OSHC in the long run, DS for E&M re-affirmed the contribution of the Council in the promotion of safety and health for the general workforce. To meet the urgent needs of the Council, the Administration was considering making a small one-off capital injection into the OSHC to fund one or two of its selected programmes for 1997-98. However, he also pointed out that notwithstanding such assistance from the Government, it must be borne in mind that the OSHC was a self-financing body and should therefore meet its expenditure from its own income. In the Administration's view, increasing the overall rate of the Levy and directing the additional Levy income to the Council would be the ultimate solution for its long-term financial viability. Meanwhile, the OSHC had been asked to consider the feasibility of the above courses of action.

18. Members remained concerned about the financial position of the OSHC, in particular its urgent need for funds to carry out its programmes in 1997-98. In this connection, the Chairman said he would have an informal meeting with the Administration and the OSHC to discuss the issue. The Panel Clerk was requested to make necessary arrangements.

VI Any other business

19. The Chairman drew members' attention to the Legislative Council Commission's recent decision that the House Committee should consider bids for funds for Member's overseas duty visits in March and October every year, and consulted members on whether any visit was contemplated for the Panel in the months of April, May and June 1997. As there was no suggestion at the meeting, the Chairman advised that members who wished to propose such visits should contact the Panel Clerk as soon as possible.

20. The meeting ended at 4:10 pm.

Legislative Council Secretariat
11 April 1997

Last Updated on 21 August 1998