Ref : CB1/BC/14/98/2

Members present :

Hon HUI Cheung-ching (Chairman)
Hon David CHU Yu-lin
Hon LEE Kai-ming, SBS, JP
Hon CHAN Kam-lam
Hon Mrs Miriam LAU Kin-yee, JP
Dr Hon TANG Siu-tong, JP

Member absent :

Hon SIN Chung-kai

Public officers attending :

For items II and III

Mr Peter KWOK
Assistant Secretary for Economic Services

Mr M C TSANG
Director of Marine (Atg)

Mr K M VARGHESE
Assistant Director of Marine

Mr H M TUNG
General Manager/Local Vessels Safety Branch
Marine Department

Mr S W BUT
Shipping Safety Officer
Marine Department

Ms Carmen CHU
Senior Government Counsel

Attendance by invitation :

For item II

Occupational Safety and Health Council

Dr Louisa WONG
Principal Consultant

New Territories Cargo Transport Association

Mr NG Wai-kwong
Chairman

Miss KWOK Mei-yi
Secretary to Chairman

Central Container Handling Safety Committee

Mr Danny MA
Representative

Mr Eddy MA
Representative

Mr Wallace WONG
Representative

Hong Kong Stevedores Employers' Association

Mr LIU Cheong-wing
Chairman

Mr YIM Yick-keung
Vice-chairman

Mr MONG Kam-tong
Secretary

Hong Kong Mid-stream Operators Association

Mr James W SHUEN
Secretary

Mr Peter K W MUI
Executive

Mr LEUNG Ying-yuen
Executive

Hong Kong and Kowloon Shipbuilding Trade Workers Union

Mr CHEUNG Chung-pak
Chairman

Clerk in attendance :

Miss Salumi CHAN
Chief Assistant Secretary (1)5

Staff in attendance :

Miss Anita HO
Assistant Legal Adviser 2

Mr Matthew LOO
Senior Assistant Secretary (1)7

I. Confirmation of minutes of meeting
(LC Paper No. CB(1)1744/98-99)

The minutes of the first meeting on 10 July 1999 were confirmed.

II. Meeting with deputations and the Administration

Purpose of the meeting

2. The Chairman advised that the meeting was held for the Bills Committee to exchange views with deputations and the Administration on the Shipping and Port Control (Amendment) Bill 1999 (the Bill). Representatives from six deputations would present their views to the Bills Committee. Two of the deputations had already provided the Bills Committee with their written submissions. Moreover, the Hong Kong Cargo-Vessel Traders' Association had also provided its written submission but its representatives were not available to attend the meeting.

3. The Chairman welcomed the representatives of the six deputations and reminded them that when addressing the Bills Committee, they were not covered by the protection and immunity provided under the Legislative Council (Powers and Privileges) Ordinance (Cap. 382). Their written submissions were also not covered by the Ordinance.

4. The Chairman also welcomed representatives of the Administration to the meeting.

Presentation by deputations

Occupational Safety and Health Council (OSHC)
(LC Paper No. CB(1) 1745/98-99(01))

5. Dr Louisa WONG, Principal Consultant of OSHC, said that OSHC supported the Administration's proposal to strengthen the legislation to further protect the safety of workers in container handling and marine construction activities. OSHC's views were summarized as follows:

1. It was appropriate to add new provisions which imposed general duties on employers, persons in charge of works and persons employed for improving occupational safety of the industries concerned;

2. The level of risks involved in marine work activities was the same as, if not higher than, that involved on the land side. The level of penalty charges for not complying with the requirements of Part V of the Shipping and Port Control Ordinance (Cap. 313) (the principal Ordinance) should therefore be raised to the same level as those stipulated in Sections 6A and 6B of the Factories and Industrial Undertakings Ordinance (Cap. 59);

3. Training and publicity were essential for improving safety of marine work activities. OSHC supported the proposed provisions in the draft Shipping and Port Control (Cargo Handling) (Amendment) Regulation 1999 (the draft Regulation) which required employers and persons in charge of works to ensure the provision of training as was necessary to ensure the health and safety at work of all persons employed, and that every person who carried on the process of cargo handling held a valid certificate of the relevant safety training course; and
   
   
4. Safety management and risk assessments were essential for ensuring safety in cargo handling. OSHC was willing to render assistance to the industries concerned in this aspect.

New Territories Cargo Transport Association (NTCTA)
(LC Paper No. CB(1) 1745/98-99(02))

6. Mr NG Wai-kwong, Chairman of NTCTA, said that NTCTA supported the Bill, except the Administration's proposal of increasing the penalty charges by 100% to 150%. Mr NG pointed out that due to the economic downturn of Hong Kong, the industries concerned had been experiencing great difficulties in continuing their business. The proposed increase in penalty charges would only impose further financial difficulties on the employers and result in some of them closing down their business, but not necessarily reduce the accident figures. Indeed, the Administration should improve safety of marine work activities through other means, for example, the launching of wide publicity to promote the general awareness of the importance of the issue, and maintaining close contact with representatives of the industries concerned to work out the code of safety.

Central Container Handling Safety Committee (CCHSC)
(LC Paper No. CB(1) 1765/98-99(01))

7. Mr Danny MA, representative of CCHSC, expressed CCHSC's concern about the revised definition of "person in charge of works" proposed under the Bill. Mr MA pointed out that under the existing legislation, "person in charge of works" meant the owner or master of, or other person having control over, the vessel concerned, or a principal contractor or sub-contractor. CCHSC considered the scope of this definition appropriate and did not see the need to expand it. Under the revised definition, however, "person in charge of works" also meant "any other person having for the time being in command or charge of any works being carried out on, to or by means of a vessel". This would expand the definition of the term to cover terminal operators. CCHSC considered the expansion unjustified and was concerned that if the revised definition was adopted, the terminal operators, being persons in charge of works, would be subject to a number of legislative requirements to be imposed on employers and persons in charge of works as proposed under the draft Regulation, such as the provision of training, and the requirement to ensure that any equipment provided for use in a workplace by the persons employed in the works should be in safe working conditions. CCHSC considered that while it was reasonable to impose such requirements on employers, it was not so for terminal operators.

8. Mr Danny MA urged the Administration to clarify the reasons for expanding the definition of "person in charge of works" and to reconsider the issue.

Hong Kong Stevedores Employers' Association (HKSEA)
(LC Paper No. CB(1) 1765/98-99(02))

9. Mr LIU Cheong-wing, Chairman of HKSEA, said that HKSEA supported the proposals in the Bill to empower the Director of Marine (D of M) to issue codes of practice and to approve any person to provide a safety training course, and to enable regulations to be made for the control of works, safety and protection of persons employed in works. However, the proposed increase in penalty charges would impose a financial burden on employers, but would not solve the problem. HKSEA therefore suggested to defer the proposed increase to a later stage.

Hong Kong Mid-stream Operators Association (HKMOA)
(LC Paper No. CB(1) 1765/98-99(03))

10. Mr James W SHUEN, Secretary of HKMOA, advised that in view of the inadequacy of the principal Ordinance, HKMOA welcomed the introduction of the Bill which aimed at strengthening the existing legislation to further protect the safety of workers. It considered that the Administration should fully consult the industries concerned before finalizing the codes of practice.

Hong Kong and Kowloon Shipbuilding Trade Workers Union (HKKSTWU)
(LC Paper No. CB(1) 1765/98-99(04))

11. Mr CHEUNG Chung-pak, Chairman of HKKSTWU, said that HKKSTWU supported the Bill which provided a clear definition of "person in charge of works" and required the employers to provide safety training courses for their workers. It also considered that in drawing up the codes of practice, the Administration should consult the industries concerned.

(Post-meeting note: The written submissions provided after the meeting by CCHSC, HKSEA, HKMOA and HKKSTWU were issued to members vide LC Paper Nos. CB(1)1765/98-99(01), (02), (03) and (04) respectively on 27 July 1999.)

Discussion with deputations

12. Mr CHAN Kam-lam noted that all the deputations were in support of the Bill but most of them did not favour the proposed increase in penalty charges. On NTCTA's views that the proposed increase would impose financial difficulties on employers and result in some of them closing down their business, Mr CHAN asked for an estimate of the additional operational costs to be incurred by employers as a result of the proposed increase, and whether NTCTA had any alternative proposals to reduce the accident figures. Mr NG Wai-kwong, Chairman of NTCTA, reiterated that the proposed increase in penalty charges would not necessarily reduce the accident figures. It was the psychological burden, in addition to the financial burden, to be imposed on employers that would discourage them from continuing their business. He considered that the Administration should adopt a more sympathetic approach and not to pursue the proposal. Instead, it should consider other means such as strengthening the publicity work on occupational safety and organizing more training courses for the workers concerned.

13. Mr CHAN Kam-lam sought clarification from HKSEA as to why it suggested to defer the proposed increase to a later stage. In response, Mr LIU Cheong-wing, Chairman of HKSEA, pointed out that the purpose of the Bill was to improve safety of marine work activities. The most important thing was to promote the safety awareness of workers, but not increase the penalty charges. The Administration should only consider increasing the penalty charges if the situation had become extremely worse. Mr LIU also pointed out that employers were well aware of the need to reduce accident figures as accidents would affect the progress of work, and might result in casualties and an increase in insurance premium for the companies concerned.

14. Mrs Miriam LAU sought clarification from HKMOA on whether it supported the proposed increase in penalty charges. Mr James W SHUEN, Secretary of HKMOA, responded that HKMOA was mainly concerned about the practicability of the safety measures to be introduced in the codes of practice and therefore urged the Administration to fully consult the industries concerned before finalizing the codes. If the situation was not improved after the implementation of the codes of practice, the Administration might consider the need to increase the penalty charges. Mr CHAN Kam-lam asked for the criteria for assessing whether or not the situation had been improved. Mr SHUEN considered that the assessment might be made by comparing the annual accident figures, taking into account the growth in container handling activities.

15. Mr LEE Kai-ming pointed out that the purpose of increasing the penalty charges was to deter employers/persons in charge of works from not complying with the requirements of Part V of the principal Ordinance. Employers who complied with the legislative requirements would not be affected. Mr LEE also noted from the paper provided by the Administration that between 1996 and 1998, the Marine Department (MD) had initiated six prosecution cases against offenders who had breached the requirements of Part V of the principal Ordinance. The six offenders concerned had been fined $3,000 to $15,000, i.e. 15% to 75% of the maximum fine. It appeared that it was rare for the court to impose the maximum fine on the offenders. Nevertheless, the penalty charges proposed under the Bill were low in comparison with those stipulated in Cap.59 and the Occupational Safety and Health Ordinance (Cap.509). Mr NG Wai-kwong, Chairman of NTCTA, disagreed and reiterated NTCTA's objection to the proposed increase in penalty charges.

16. Mrs Miriam LAU advised that mid-stream operation was unique in Hong Kong and no reference could be made to overseas experience. In view of the difference between land-based and sea-based operations, Mrs LAU considered it inappropriate to compare the provisions of the Bill with those in Cap. 59 and Cap. 509. She also considered it inappropriate for the Administration to increase the penalty charges before the implementation of the codes of practice. The proposed increase might in fact not be necessary if the codes proved to be effective in improving the safety of marine work activities.

17. The Chairman thanked the deputations for attending the meeting. Assistant Secretary for Economic Services (ASES) undertook to give a written response to the deputations' views.	Admin

(Post-meeting note: The Administration's written responses to the submissions from the seven deputations were issued to members vide LC Paper No. CB(1)1934/98-99(01), (02), (03), (04), (05), (06) and (07) on 21 September 1999.)

III. Meeting with the Administration
(LC Paper No. CB(1)1738/98-99 - Correspondence between the Administration and Assistant Legal Adviser 2 on the policy intent of clause 8 of the Bill

LC Paper No. CB(1)1745/98-99(04) - The Administration's response to the points raised by members at the first meeting on 10 July 1999)

Application of Part V of the principal Ordinance to vessels of 50 metres or less in length

18. Responding to Mr CHAN Kam-lam, ASES advised that at present, ship repairing and ship breaking activities for vessels of 50 metres or less in length were exempted from the control of Part V of the principal Ordinance. The proposed amendment to section 37 of the principal Ordinance, by clause 8 of the Bill, would remove such an exemption. After the enactment of the Bill, any repairing or breaking up work of vessels, irrespective of their length, would be subject to the provisions of Part V of the principal Ordinance. Mr CHAN Kam-lam noted that clause 10 of the Bill amended section 40 of the principal Ordinance by adding a new subsection (1A) so that vessels of 50 metres or less in length would be exempted from the requirement of seeking D of M's permission for any repairing or breaking up work to be carried out to the vessels. Mr CHAN queried the justifications for adding the new subsection (1A) which was not in line with the policy intent of clause 8 of the Bill. D of M (Atg) advised that at present, the written permission of D of M was not required for the carrying out of any repairs to, or breaking up of, these small vessels. As no problem had been experienced so far, the Administration considered it appropriate to retain the existing arrangement. Mr CHAN was not convinced. At Mr CHAN's request, D of M (Atg) agreed to reconsider the issue.

Admin

Level of penalty charges

19. Mrs Miriam LAU noted from the paper provided by the Administration that the casualty and fatality figures of marine work activities between 1997 and 1998 depicted a downward trend, and that the decrease in the figures was probably due to the "increased awareness of safety practices in the industry". Mrs LAU therefore queried whether it was justified to increase the penalty charges at this stage. D of M (Atg) advised that despite the decrease in the relevant figures, the fatality figure in 1998 was five which was still on the high side. Hence, the Administration proposed to increase the existing penalty charges, which had been set in 1978, to deter employers/persons in charge of works from not complying with the legislative requirements and accordingly, reduce the accident figures. Dr TANG Siu-tong wondered why the level of penalty charges had not been reviewed for over 20 years, especially in 1995 when there was a sharp increase in casualty and fatality figures. D of M (Atg) explained that both the Department of Justice and MD had all along been engaged in a number of Bills and could only deal with them according to the priority set.

20. Mr LEE Kai-ming pointed out that there had been over 500 casualty and fatality cases in each of the recent three years. He considered the figures alarming and supported the Administration's proposal to increase the penalty charges.

21. Mrs Miriam LAU considered it unfair to increase the penalty charges before the implementation of the codes of practice. D of M (Atg) advised that the provisions of the Bill would be put into effect after the implementation of the codes of practice, i.e. 12 months after the enactment of the Bill. Mrs LAU was surprised at this reply as the Bill was not drafted as such. D of M (Atg) clarified that there could be a grace period after the enactment of the Bill to allow time for working out the codes of practice and the introduction of the Shipping and Port Control (Cargo Handling) (Amendment) Regulation 1999. For the sake of clarity, Mrs LAU requested the Administration to clarify the commencement date of the proposed provisions of the Bill, in particular those relating to the increase in penalty charges, and the issue of codes of practice by D of M. She also requested the Administration to seriously consider whether it would be more appropriate to assess the need to increase the penalty charges after the implementation of the codes of practice.

Admin Admin

22. Mrs Miriam LAU also queried the need to increase penalty charges for all of the offences in Part V of the principal Ordinance. She noted that the six prosecution cases initiated by MD between 1996 and 1998 involved three different offences, namely, "carrying out works in dangerous condition" (4 cases), "fails to comply with direction" (1 case), and "carrying out ship repairs without permission" (1 case). She doubted whether it was necessary to increase the penalty charges for the last offence which was relatively minor. D of M (Atg) responded that it was necessary to increase the penalty charges for all of the relevant offences to achieve a deterrent effect.

23. ASES pointed out that the offenders involved in the six prosecution cases between 1996 and 1998 had been fined a total of $39,500. It appeared unlikely that the increase in penalty charges would bring in great revenue for the government or increase the operational costs of employers. It was only expected to achieve a deterrent effect and reduce the accident figures. ASES also made it clear that the increase in penalty charges was only part of the whole package of the proposed legislative amendments which aimed at improving the safety of marine work activities.

Publicity on occupational safety

24. Responding to Mr CHAN Kam-lam, D of M (Atg) advised that the Administration had regularly issued posters and pamphlets on occupational safety to the industries concerned. The Administration would continue its publicity work to promote the awareness of the importance of occupational safety.

IV. Any other business

Date of next meeting

25. The next Bills Committee meeting will be held on Thursday, 23 September 1999 at 8:30 am.

26. The meeting ended at 10:15 am.

Legislative Council Secretariat
21 September 1999