LegCo Paper No. CB(1)443/96-97
(These minutes have been seen by the Administration)
Ref : CB1/PL/MP/1
LegCo Panel on Manpower
Minutes of meeting held on Monday, 25 November 1996 at 2:30 p.m. in the Chamber of the Legislative Council Building
Members present :
Hon LAU Chin-shek (Chairman)Members absent :
Hon CHAN Yuen-han (Deputy Chairman)
Hon CHEUNG Man-kwong
Hon Frederick FUNG Kin-kee
`Hon Michael HO Mun-ka
Hon Henry TANG Ying-yen, JP
Hon James TIEN Pei-chun, OBE, JP
Hon CHAN Wing-chan
Hon CHENG Yiu-tong
Hon LAW Chi-kwong
Hon LEE Kai-ming
Hon LEUNG Yiu-chung
Hon MOK Ying-fan
Hon NGAI Shiu-kit, OBE, JPPublic officers attending:
Hon SZETO Wah
Hon Ronald ARCULLI, OBE, JP
Dr Hon LEONG Che-hung, OBE, JP
Hon LEE Cheuk-yan
Hon Bruce LIU Sing-lee
Hon TSANG Kin-shing
- Mr Alex FONG
- Deputy Secretary for Security
- Ms Ingrid HO
- Principal Assistant Secretary for Security
- Mr T P WONG
- Assistant Director of Immigration
Item IV and V
- Miss Esther LEUNG
- Acting Principal Assistant Secretary for Education and Manpower
- Mr Alfred CHAN, JP
- Acting Commissioner for Labour
Item V and VI
- Mr Matthew K C CHEUNG, JP
- Deputy Secretary for
- Education and Manpower
Clerk in attendance :
- Mr Herman CHO
- Principal Assistant Secretary for Education and Manpower
- Mr K F LEE, JP
- Deputy Commissioner for Labour
(Occupational Safety and Health)
- Mr S Y MAK, JP
- Assistant Commissioner for Labour
(Occupational Safety and Health)
- Dr W K LO
- Occupational Health Consultant Labour Department
Staff in attendance :
- Miss Polly YEUNG
- Chief Assistant Secretary(1)3
- Mr Arthur CHEUNG
- Assistant Legal Adviser 5
- Ms Connie SZE-TO
- Senior Assistant Secretary(1)5
I. Confirmation of minutes of meeting and matters arising
(LegCo Paper Nos. CB(1)357/96-97 and CB(1)358/96-97)
1. The minutes of the Panel meetings held on 28 October and 1 November 1996 were confirmed.
II. Date and items for discussion for next meeting
2. Members agreed to advance the next Panel meeting originally scheduled for 23 December 1996 to Tuesday, 17 December 1996 at 10:45 a.m. to discuss the following items:
- Employment of foreign domestic helpers as domestic drivers;
- Consultancy reports on the strategic and organisational review of the Vocational Training Council and on the Employees Retraining Scheme.
It was also agreed that members of Security Panel and the Education Panel would be invited to join the discussion of items (a) and (b) respectively.
III. Information papers issued since last meeting
(LegCo Paper No. CB(1)361/96-97)
3. The Panel noted that a paper on the appeal against the Administration's decision to refuse the importation of butchers referred by the LegCo Complaints Division had been issued for members' general information.
IV. Entry of British citizens for employment in Hong Kong
(LegCo Paper No. CB(1)371/96-97(03) and (04))
4. At the Chairman's invitation, Mr Alex FONG informed the meeting that in response to members' concerns expressed at the meetings in May and July 1996 on the current visa-free arrangement for British citizens to enter Hong Kong and take up employment freely, the Administration had completed a review on the policy and would propose changes to remove the differences in immigration status between British citizens and that of other foreign nationals. He also explained that the Administration would adhere to the following principles in implementing the proposals:
- The new arrangements should be in place before the change of sovereignty in 1997.
- The immigration status of British citizens would be brought into line with that of other foreign nationals. They would be required to apply for employment visas if the purpose of entry was for employment and the same criteria adopted for considering applications from other foreign nationals would be applied.
- It was necessary to minimise the disruption caused to British citizens who were already in Hong Kong.
5. In reply to a member's enquiry, Mr FONG explained the following proposed arrangements for dealing with the different immigration status of British citizens in Hong Kong:
- British citizens who were holding the right to land would be given unconditional stay status. Such changes would require legislative amendments.
- Those who were eligible to acquire the right of abode under Article 24 of the Basic Law could apply for this right. Details were still under discussion at the Joint Liaison Group (JLG).
- At present, the Director of Immigration was empowered under section 61(2) of the Immigration Ordinance to exempt a person from the requirement of possessing a visa when entering Hong Kong. It was proposed that as an administrative measure, this exemption would no longer be applicable to British citizens.
6. As regards the treatment of British citizens currently working in Hong Kong, Mr FONG advised that they would be allowed to continue with their employment until the expiry of their permissible period of stay. The Immigration Department (ImmD) would review their cases when they applied for extension to stay in Hong Kong and the same criteria for approval and the extension pattern for other foreign nationals would be applied. Thus, British citizens who did not possess the required special skill would not be issued with employment visas to work in Hong Kong. Such transitional arrangement would avoid any sudden increase in the workload of the ImmD arising from having to process 17,000 cases of British citizens who were currently in Hong Kong under the visa-free arrangement. It would also lessen the immediate impact on those presently working in Hong Kong. Upon further enquiry by the Chairman, Mr T P WONG advised that as under the current policy, the maximum extendible period for a British citizen to stay in Hong Kong after entry was three years, it was estimated that the transitional arrangement would at most last for about three years.
7. The Deputy Chairman expressed dissatisfaction at the Administration's lack of immediate action to abolish the visa-free arrangement for British citizens to take up employment in Hong Kong. Pointing out that there had been a sharp rise in the number of British citizens in the territory since last year and a growing trend that they were taking up non-professional jobs which had jeopardised the job opportunities of local workers, she urged that the present arrangement should be halted immediately. In this connection, she also indicated her intention to introduce a Member's Bill to this effect.
8. A member expressed support for lifting the special entry arrangement for British citizens as early as possible to prevent the possible influx of British citizens into Hong Kong for employment in anticipation of the change in policy.
9. In response to members' concerns, Mr FONG and Mr WONG made the following points:
- The Administration was of the view that changes to different aspects of the immigration status of British citizens should be introduced as a package so as to facilitate implementation by the ImmD and avoid causing uncertainty to those affected by the changes. Therefore, it was not advisable to single out "visa-free" entry for advance action.
- Discussion and consultation with concerned parties had begun and was expected to be completed by the end of December 1996. The Security Branch had been actively seeking an early time slot to introduce the necessary legislative amendments.
- On the operational aspect, it was not possible to screen out at the entry checkpoints British entrants who intended to seek jobs in Hong Kong because at present, they were not required to declare the purpose of entry.
- Since the Administration had already formulated plans to abolish the visa-free policy for British citizens to work in Hong Kong, the need for a Member's Bill was questionable.
- The Administration did not envisage any possible influx of British citizens for employment before the change in policy which would not operate on a "touch-base" basis. When the new policy was in place, successful entrants who came in during the last few months of the transition would eventually still be subject to the ImmD's review on their visa extension after the initial 12-month period. Moreover, there had been no discernible increase in the number of British citizens entering Hong Kong over the past few months since members started to raise the issue.
10. Responding to the Chairman's request for more detailed information on the 17,000 British citizens staying in Hong Kong under the visa-free arrangement, including the number who were in employment and their occupations and positions, Mr FONG said that the government had no detailed breakdown of such information but said that the British trade/industrial associations in Hong Kong could be approached for such information. He undertook to make some enquiries.
11. On the timing for implementing the proposed changes, Mr FONG re-iterated the Administration's commitment to putting the new policy in place as soon as possible. The Chairman requested Mr FONG to report in writing by the end of December 1996 the outcome of consultation with the parties concerned and to provide a proposed timetable.
12. The Deputy Chairman informed members that she had submitted her draft bill to the Law Draftsman. In the event that the Administration failed to take concrete action in early 1997, she would proceed with her bill.
V. Issues related to the Trade Boards Ordinance
(LegCo Paper No. CB(1)371/96-97(01) and (02); 375/96-97(01))
13. Some members expressed grave concerns about the low wage increases in recent years which had not been adequate to ensure real improvement in the livelihood of employees and queried why the Trade Boards Ordinance (TBO) had never invoked to prescribe minimum wages for industries and trades.
14. Responding to members' concerns, Mr Matthew CHEUNG and Mr Alfred CHAN made the following points:
- The Administration had all along adopted a "minimum intervention" policy and was committed to maintaining the free market economy of Hong Kong. The mechanism under which the desired wage level was determined by the interaction of supply and demand in the labour market was most effective.
- The Administration had never found it necessary to invoke the TBO since its enactment. It was considered that any move to temper with free market decisions would be counter-productive. If set too high, the minimum wages might increase labour costs and add to the financial burden of small employers. On the other hand, low minimum wages might become a discentive for the employers to pay higher wages despite workers' productivity.
- The TBO was enacted in 1940 to repeal the then Minimum Wage Ordinance (MWO). The latter was a piece of legislation intended to extend to Hong Kong the British Government's obligation to follow International Labour Convention (ILC) No.26 concerning the creation of minimum wages fixing machinery. Since the British Government had denounced ratification of this convention in 1985 Hong Kong was no longer obliged to comply with this convention. Taking this into account and the possible shortcomings of enacting minimum wage system in Hong Kong, the Administration was considering whether the TBO should still be retained.
15. Hon James TIEN concurred with the Administration that it was not advisable to legislate for a minimum wages determination system in Hong Kong.
16. Some members expressed strong dissatisfaction at the Administration's responses and put forward their contending views as follows:
- Minimum allowable wages were in place for imported workers and foreign domestic helpers. This was already a form of government intervention in the labour market.
- The forces of free market had failed to bring about reasonable wages for workers. In reality, wages offered in some industries and trades were unreasonably low and workers had to accept them reluctantly for fear of losing their jobs in the current period of high unemployment.
- Some form of commonly accepted wage levels in certain trades and occupations such as furniture and carpentry already existed. This could form a basis of setting minimum wages.
- Prior to rejecting the introduction of minimum wages, the Administration should study the minimum wage determination mechanism in neighbouring countries such as Singapore and Taiwan.
- In the absence of any minimum wages, the Administration should explore other alternatives such as legislating for compulsory collective bargaining so as to increase employees' bargaining power in the negotiation of wages.
17. In response to members' views, Mr CHEUNG and Mr CHAN made the following points:
- The policy on importation of labour was formulated for the purpose of addressing identified areas of labour shortfall in the local economy. The stipulation of minimum allowable wages for foreign labour was a means to safeguard the interests of local workers so that they would not be displaced by cheap imported labour. This had by no means distorted the free market mechanism.
- The "minimum intervention" policy had served Hong Kong well. As regards wage regulation systems of other countries, there was no minimum wage legislation in Singapore, except for that on children and young persons which had never been invoked. The tripartite National Wage Council was not a statutory body and its proposals on wage increase were not legally binding on employers. Although a statutory minimum wage system was practised in the U.S.A., it had not worked in the interest of workers as very often, only the minimum wages were offered.
- While the Government would not seek to interfere with wages, it was committed to improving the rights and benefits of the workforce in a way commensurate with the pace of Hong Kong's social and economic development. This could be illustrated by the plan to introduce some 10 legislative proposals in the 1996-97 session.
18. Pointing out that debating the issue at the Panel meeting might not be conclusive, the Chairman suggested that interested members could consider moving a motion debate on this subject at a LegCo sitting.
19. Regarding the possible repeal of the TBO, Mr CHEUNG advised that the Administration would review whether there was still a need to retain this Ordinance. If it was decided that the repeal was necessary, a declaration had to be made to the International Labour Organisation to the effect that ILC No. 26 ceased to apply to Hong Kong. Mr CHAN added that the Administration would also consider consulting the Labour Advisory Board on the repeal.
(Mr Arthur CHEUNG, ALA5, joined the meeting at this juncture.)
20. Responding to the Chairman's enquiry, Mr Arthur CHEUNG confirmed that an amending bill had to be introduced in order to repeal the ordinance in question. Hence, the repeal of an ordinance would still have to undergo the necessary legislative procedures.
VI. Briefing on the Occupational Safety and Health Bill
(LegCo Brief EMB CR3/3231/95, information paper provided by the Administration tabled at the meeting.)
21. As the LegCo Brief and information paper were received very late, the Chairman invited Mr Matthew CHEUNG to brief members on the key features of the Bill which sought to extend the protection of health and safety at the workplace to all employees. These included the following:
- The Bill was basically an enabling ordinance. Specific standards for various aspects of occupational safety and health would be set out under different sets of regulations to be made under the Bill. It was proposed that as a first stage, the Occupational Safety and Health Regulation (OSHR) would be made after the Bill was enacted.
- The basic tenet of the proposed legislation was one of promotion and education rather than prosecution. The approach would be preventive and not curative.
- With the exception of four categories of employees, it was estimated that some 1.8 million employees of Hong Kong's workforce would be covered by the Bill.
- There would be a 12-month grace period before provisions of the Bill and Regulation would be brought into operation, thus allowing time for the Administration to launch extensive publicity and education.
22. Some members welcomed the introduction of the Bill although they considered it overdue. Noting the wide range of safety issues covered by the Bill and that some additional 220,000 non-industrial establishments would be brought under its aegis, members expressed serious concerns on future enforcement and resources implications. They urged the Administration to draw up a comprehensive action plan on education and enforcement for members' information.
23. In reply, Mr CHEUNG and Mr K F LEE made the following points:
- The Administration was fully aware of the need to publicise the new legislative requirements and would make the best use of the 12-month grace period to launch an extensive programme of promotional and educational activities.
- It was considered that in the non-industrial sector, issues related to occupational health might be more at stake than safety hazards. As part of its promotional effort, relevant guidelines would be issued and close links would be fostered with various trades bodies, unions and professional bodies.
- Enforcement and sanctions would be broadly similar to those applicable in the industrial sector. The Labour Department (LD) would carry out inspection visits, investigate into complaints and accidents and take out prosecution if necessary. It was proposed that under the Bill, the Commissioner for Labour (C for L) would also be empowered to issue improvement notices and suspension notices in respect of unsafe work situations.
- On resources implications, a total of 88 posts would be created in the LD in 1997-98. The staffing requirement would be reviewed in late 1997 and if necessary, a further 75 posts would be created in the Department.
24. A member drew the meeting's attention to the application of regulation 10 of the proposed OSHR. Referring to the recent fire at the Garley Building, he enquired whether the OSHR, if enacted, would empower the C for L to require the provision of additional fire safety measures in a workplace which was located in a residential-cum-commercial building and which was not subject to any statutory fire safety control at present. The Chairman also sought clarification on whether the Bill and its Regulations would apply to all workplaces, irrespective of whether they were located in commercial or residential premises.
25. In response, Mr LEE advised as follows:
- The proposed regulation 10 of the OSHR sought to extend the existing fire safety requirement on industrial undertakings to non-industrial establishments.
- It was correct to say that where the premises were used as a workplace, the C for L could, if the Regulation was passed and where the situation so warranted, require the provision of additional fire safety measures. Nevertheless, in stipulating such requirement(s), the C for L would take into consideration the practical and structural constraints of the workplace concerned.
26. Members raised for discussion the appropriateness or otherwise of the requirement that for each 150 employees employed in the workplace, at least one member should be properly trained in first-aid. A member doubted whether there were sufficient staff members with first-aid training to meet this legal requirement.
27. In response, Dr W K LO informed the Panel that according to the Administration's estimate, there were about 2,300 establishments with more than 150 employees and the number of employees at these establishments totalled 730,000. Not much difficulty was envisaged in providing the required 5,000 trained staff since the Red Cross, St. John's Ambulance and Auxiliary Medical Services trained up some 10,000 first-aiders each year.
28. On the merits of using 150 employees as the threshold in non-industrial establishments, members exchanged views and agreed that this issue should be pursued when scrutinising the Bill in due course.
29. Members generally agreed that the present Bill, which would be introduced on 4 December 1996, should receive urgent attention. The Chairman requested the Administration to accord high priority to this Bill. Meanwhile, with the Panel's concurrence, he said that he would seek members' support at the House Committee meeting on 6 December 1996 to activate the Bills Committee immediately, if one was to be formed.
30. The meeting ended at 4:40 p.m.
Legislative Council Secretariat
12 December 1996
*-- other commitments
Last Updated on 21 August 1998