Bills Committee on Occupational Deafness (Compensation) (Amendment) (No.2) Bill 1997

Provisional Legislative Council

PLC Paper No. CB(2) 695

(These minutes have been seen by the Administration)

Ref : CB2/BC/4/97

Bills Committee on Occupational Deafness (Compensation) (Amendment) (No.2) Bill 1997

Meeting on 24 October 1997 at 3:20 pm in Conference Room B of the Legislative Council Building

Members present :

Dr Hon TANG Siu-tong, JP (Chairman)
Hon WONG Siu-yee
Hon HO Sai-chu, JP
Hon LEE Kai-ming
Hon Ronald ARCULLI, JP
Dr Hon LEONG Che-hung, JP
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
Hon CHAN Kam-lam
Hon CHAN Wing-chan

Member absent :

Hon James TIEN Pei-chun, JP

Public officers attending :

Ms Esther LEUNG: Principal Assistant Secretary for Education and Manpower
Mrs Jenny CHAN: Assistant Commissioner for Labour
Dr W K LO: Occupational Health Consultant
Mr K F CHEUNG: Senior Government Counsel

Clerk in attendance :

Ms Doris CHAN: Chief Assistant Secretary (2)4

Staff in attendance :

Ms Bernice WONG: Assistant Legal Adviser 1
Mr Stanley MA: Senior Assistant Secretary (2)7

I. Election of Chairman

Nominated by Dr LEONG Che-hung and seconded by Mr LEE Kai-ming, Dr TANG Siu-tong was elected Chairman of the Bills Committee.

II. Meeting with representatives of the Administration

The major proposals in the Bill

2. At the Chairmans request, Principal Assistant Secretary for Education and Manpower (PAS/E&M) briefed members on the Bill. She said that following a comprehensive review of the Occupational Deafness Compensation Scheme (the Scheme), and in consultation with the Occupational Deafness Compensation Board (ODCB) and the Labour Advisory Board (LAB), the Administration proposed the following -

to retain the provision to lower the minimum deafness threshold from 50 dB to 40dB;
to add eight noisy occupations (employing some 8 900 employees) to the existing list of 17 specified occupations for which compensation was payable under the Scheme so that a larger number of claimants would become eligible for compensation;
to waive the requirement for claimants to pay for the cost of hearing tests and medical examinations;
to put in place a transitional arrangement to allow claimants who had at any time been employed under a continuous contract of employment in noisy occupations on or after 1 July 1989, but would not be qualified for compensation because they had left employment for more than 12 months, to apply for compensation within a certain period;
to increase the rate of levy on employees compensation insurance premium by 0.8 percentage point from the existing 1.5% to 2.3%;
to amend the Occupational Deafness (Compensation) (Amendment) Ordinance 1997 (99 of 1997) (the Amendment Ordinance) to the effect that the scale of permanent incapacity with reference to different levels of hearing loss for the purpose of compensation would be adjusted downwards to the original scale with additional percentages to cater for the lowering of the deafness threshold so as to ensure that ODCB would have sufficient resources to implement the improvement measures;
to review the Scheme two years after the implementation of the improvement measures;
to put in place a transitional arrangement whereby those who had submitted their claims before the proposed amendments in the Bill come into effect would continue to enjoy the higher rate of compensation in accordance with the Amendment Ordinance; and
to implement a number of other measures to improve the operation of the Scheme.

Transitional Arrangement

3 Mr Ronald ARCULLI enquired about the estimated number of claimants and the amount of compensation which would be incurred as a result of the proposed transitional arrangement under clause 16 of the Bill. Assistant Commissioner for Labour (ACL) replied that towards the end of 1997, around 500 applications involving an estimated additional compensation amount of about $16 million would be approved in accordance with the provisions of the Amendment Ordinance. In reply to Dr LEONG Che-hungs follow up question, ACL confirmed that persons who had been employed at any time beginning on 1 July 1989 under a continuous contract in any noisy occupation in Hong Kong but had left their employment for more than 12 months would also be allowed to apply for compensation within 12 months from the commencement of clauses 1 to 20 of the Bill, which would become operational on the day the Bill was enacted and was published in the Gazette as an Ordinance.

The effect of the Bill on compensation

4. In reply to Dr LEONG Che-hungs enquiries, ACL said that comparing to the existing scale of translating hearing loss into percentages of permanent incapacity under the Amendment Ordinance, the average compensation per successful claim under the Bill would be reduced by around thirty to forty thousand dollars. Dr LEONG said that he was surprised by the fact that claimants suffering from a certain level of occupational deafness would receive less compensation under the Bill than the Amendment Ordinance. ACL explained that in proposing the package of improvement items in the Bill, the Administration had, given the source of income of ODCB as prescribed under the Employees Compensation Insurance Levies Ordinances (Cap. 411), primarily sought to expand the coverage of the Scheme to include eight additional noisy occupations and to lower the minimum level of hearing loss of claimants from 50 dB to 40 dB so that more victims of occupational deafness could receive compensation.

The source of income for ODCB

5. Noting that the proposals to improve the Scheme, notably the retention of the lower deafness threshold and the addition of eight noisy occupations to the list of specified noisy occupations, would considerably increase the workload of ODCB, Mr WONG Siu-yee was concerned about the long term financial and staffing implications of the Bill. ACL responded that by virtue of clauses 1(3), 21 and 22, the Bill had provided for the increase of rate of levy on employees compensation insurance premium by 0.8 percentage point from the existing 1.5% to 2.3% so as to enable ODCB to pay compensation claims as they were due and to implement the improvement proposals.

The requirement of a minimum 10-year service in noisy occupations

6. Referring to the Administrations claim that the Bill was drafted with the intention to enable more persons suffering from occupational deafness to receive compensation, Mr LEE Kai-ming questioned why the recommendation of the Working Group on Review of the Occupational Deafness (Compensation) Ordinance (Cap.469) (the Working Group) to relax the service requirement from ten to five years for employees who were constantly exposed to noise level of over 100dB(A) or peak sound pressure level of 140 dB or above had not been incorporated in the Bill. ACL explained that a 10-year service in a noisy industry could convincingly substantiate a claimants claim of occupational deafness. She pointed out that UK and Singapore had the same requirement to justify a claim of occupational deafness and ODCB, having regard to its financial restraints, had considered that proposals to expand the coverage of the Scheme should be given priority over those that introduced enhancements to the Scheme. Mr LEE responded that a direct comparison between Hong Kong and UK, and between Hong Kong and Singapore on this aspect alone was not fair as both UK and Singapore had a more stable workforce than Hong Kong. The verification of a 10-year employment history for labour workers in noisy occupations in Hong Kong was in general difficult and often involved a long processing time. In reply to the Chairmans follow-up question, Dr W K LO of the Department of Health supplemented that the cause of sensorineural hearing loss was not limited to working in a noisy environment. He pointed out that the hearing test conducted by doctors at a hearing test centre arranged by the ODCB could only ascertain a claimants degree of sensorineural hearing loss and not its cause. The doctors concerned would have to rely on claimants statement to comment on whether the hearing loss of the claimant was caused by a noisy occupation. As far as compensation was concerned, a 10-year service requirement could serve to establish a relationship between an employees noise-induced deafness and his/her occupation.

The incorporation of an occupation into the list of specified noisy occupations

7. Mr CHAN Wing-chan enquired about the procedures established for identification of noisy occupations. In response, ACL said that the Working Group had considered the opinions of the Occupational Safety and Health Branch of the Labour Department, labour groups, medical professionals, audiologist, and the feedback of individual claimants on 26 occupations and had conducted on site noise measurements. The noise level which qualified a noisy occupation was an average daily personal noise exposure level of 90 dB(A) or above over a continuous period of eight hours. The daily personal noise exposure level of 90 dB(A) was based on an action level under the Factories and Industrial Undertakings (Noise at Work) Regulation (Cap. 59T). As a result of these measurements, eight more occupations were proposed to be added to the list of specified noisy occupations, i.e. Schedule 3 of the Ordinance (Cap.469).

8. Mr LEE Kai-ming asked whether the job of Disco Jockey should be included in the list of specified noisy occupations. ACL replied that measurements of noise level in selective disco premises had been made in 1994 and the average figure was found to be below 90 dB(A) level. Mr LEE urged the Administration to monitor the situation and arrange re-assessments for those noisy working environments such as disco and catering premises, taking into consideration the peak time and appropriate locations for conducting measurements.

Statistics on the processing of applications

9. In reply to Dr LEONG Che-hungs enquiries, ACL responded that between the period 1 July 1995 to 30 September 1997 -

ODCB had received a total of 1 348 applications and had paid compensation to 474 claimants, of which 111 compensations were assessed and calculated in accordance with the related provisions of the Amendment Ordinance;
A total of 72 claimants had withdrawn their applications during the assessment process;
A total of 445 applications was now under assessment by ODCB; and
A total of 357 applications had been rejected on grounds of, namely, hearing loss of less than 50 dB (263 claimants with 120 of them having a hearing loss within the region of 40 dB to 49 dB), insufficient evidence to support past employment (27 claimants), occupations not included under the list of specified noisy occupations (25 claimants), leaving the specified noisy occupations before 1 July 1989 (29 claimants), and lastly less than 10-year service in specified noisy occupations (11).

Dr W K LO supplemented that claimants would normally be arranged to attend a hearing test and/or medical examination within a month after their eligibility for compensation as supported by the statements in their applications had been verified. As for claimants who for some reasons could not provide acceptable proof of their service history in the noisy occupation(s) concerned, Dr LO said ODCB would flexibly consider their applications and make appropriate decision on a case-by-case basis. Where appropriate, ODCB would exercise discretion to given the benefit of doubt to the claimant. In reply to Dr LEONGs follow up question, Dr LO said that around 15 percent of the applications received had been disqualified before the arrangement of a hearing test and/or medical examination.

[Post meeting note : ACL had provided a paper in response to Dr LEONGs follow up question on the longest time of processing an application which had been circulated to members vide PLC Paper No.CB(2)557]

Percentage of permanent incapacity correlating to degrees of hearing loss

10. Members noted that the percentage of permanent incapacity for compensation purpose for persons suffering from total deafness due to long service in a noisy occupation (both ears having a hearing loss of 90dB and above) was 60 under the Bill while persons suffering from total deafness due to a work-related accident was 100 under the Employees Compensation Ordinance. ACL explained that unlike total deafness resulting from a work-related accident, occupational deafness of a person normally developed insidiously over a long period of time and the impact of the disability was not as acute as that of deafness caused by a traumatic work accident. Besides, there were other factors such as ageing and disease contributing to a persons hearing loss. Noting that the permanent incapacity awarded for total deafness varied from 35 % to 75% in a number of countries, the Working Group proposed to maintain 60% as the permanent loss of earning capacity for total deafness due to occupation for the purpose of compensation.

Pre-employment and regular in-service hearing tests and medical examinations

11. Responding to Dr LEONG Che-hungs enquiry on the feasibility of requiring employers of noisy occupations to arrange pre-employment and regular hearing tests for their employees, Dr LO replied that the proposed Factories and Industrial Undertakings (Medical Examinations) Regulation, which required workers exposed to noise exceeding 85 dB(A) for an eight-hour working day to undergo specified medical examination including auroscopic examination and audiometric tests before employment and periodically during employment, was in the drafting stage and would be presented to the Legislative Council in 1998/99. In reply to members follow-up enquiry, he said that the deterioration of an employees hearing ability caused by his/her occupation could be assessed from the results of regular hearing tests.

Educational and preventive measures

12. In reply to Mr WONG Siu-yees enquiries, ACL said that it was considered not necessary to provide successful claimants with further assessment of hearing loss for the purpose of compensation since they should be more responsive to advice and take initiative to prevent further hearing impairment. She added that under the Occupational Safety and Health Ordinance, employers also had a legal obligation to provide employees with suitable hearing protective equipment. With the passage of the Bill, ODCB would have the statutory power to conduct and finance educational and publicity programmes to promote awareness of the importance of hearing preservation among employees. As for the reduction of number of persons suffering from occupational deafness in the future, she stressed that with education, publicity and legislative control of noise at work, employers and employees should become more aware of the need and method of hearing preservation.

Date of next meeting

13. Members agreed to invite representatives of the Hong Kong Occupational Deafness Association to attend the next meeting scheduled for 4 November 1997 at 8:30 am in Conference Room A of the Legislative Council Building.

14. The meeting ended at 4:15 pm.

Provisional Legislative Council Secretariat
1 December 1997