The Administration's response to concerns raised on the
1. In what ways will the proposed legislation help promote a safe working environment and protect the health of employees in hazardous occupations? The Administration is requested to provide the time frame for implementation of these policy objectives and extension of the legislative protection to employees in non-industrial establishments.
FIU (Medical Examinations) Regulation
at the meeting of the Subcommittee on Regulations relating to
Occupational Safety & Health on 27 September 1999
When an occupational disease is detected in regular medical examinations, the appointed medical practitioner (AMP) has the legal obligation to notify the Commissioner for Labour. Investigations will be conducted by staff of the Labour Department and the proprietor will be advised to improve the safety and health of the working environment by undertaking preventive and control measures as stipulated under the subsidiary regulations of the Factories and Industrial Undertakings Ordinance (FIUO). Enforcement actions would be initiated where appropriate. In addition, the health of the worker is safeguarded through detection and treatment of the occupational disease he is suffering from, and through taking appropriate measures, e.g. use of personal protective equipment, to prevent deterioration and recurrence of the disease.
To further develop and promote a self-regulatory safe working environment, workplace environmental assessment and monitoring, which is of equal importance to medical examinations, is being incorporated into the 14 essential elements in the proposed FIU (Safety Management) Regulation. We plan to introduce this Regulation into the Legislative Council on 27.10.99.
The Administration's ultimate aim is to incorporate the FIUO into the Occupational Safety and Health Ordinance (OSHO). However, there are practical and legal problems that need to be identified and solved. For example, the duty holders under the FIUO and the OSHO are different. Under the FIUO, the duty holders are the proprietors, the contractors and the workers. Under the OSHO, the duty holders are the employers, the occupiers of premises and the employees. As the legal implications on these duty holders have to be worked out very carefully and we need to gain some operational experience under the OSHO, we cannot provide a firm timeframe to extend this Regulation to all employees in the non-industrial sector at this stage.
2. The reasons for requiring medical examinations to be carried out only by appointed medical practitioners and the implementation arrangements.
It is a well-established overseas practice for medical examinations for workers exposed to hazardous substances and physical agents to be performed only by doctors qualified in occupational medicine. The International Labour Organization has also made similar recommendation. The Hong Kong Medical Association, which is an organization incorporating different specialties, has also supported that such medical examinations be undertaken by doctors with special training in occupational medicine.
We would like to point out that occupational medicine is a specialty which aims at keeping workers fit for work and monitoring their health rather than treating established diseases which is mainly under other clinical specialties. Occupational medicine doctors with special training in medical toxicology of hazardous chemicals and physical agents at work and in occupational health promotion and education, would be in a better position to provide workers with appropriate occupational health counselling such as the selection and proper use of appropriate personal protective equipment.
We plan to implement the Regulation in stages. The medical examination of workers already required under existing legislation such as employment in mines, quarries and tunnelling operations, compressed air work, the use or handling of or exposure to asbestos, and carcinogenic substances, should be carried out by AMPs six months after the enactment of the Regulation. For those workers who are exposed to the 13 additional hazardous substances and physical agents, except excessive noise, medical examinations should be provided after a 12-month's grace period. Those for workers exposed to excessive noise will take effect in the last phase. This phased approach will allow sufficient time for an adequate number of general practitioners (GPs) to acquire the qualifications as AMPs.
3. The timeframe and training arrangements for providing sufficient qualified medical practitioners to carry out the medical examinations.
On the assumption that medical examinations are evenly spread out throughout the year and the AMPs are working on a full-time basis, our estimate is that a total of 25 AMPs is sufficient to handle medical examinations for the 195,000 workers. At present, there are about 25 medical practitioners in the private sector with training in occupational medicine. Another 14 doctors are presently studying in the 1999/2000 Diploma in Occupational Medicine course run by the Chinese University of Hong Kong (CUHK). By 2000, we expect the pool of available AMPs, excluding those working in the civil service and the Hospital Authority, will be about 35. The CUHK has an annual training capacity of 30 doctors. Upon passing the Regulation, we believe that there will be more doctors in the private sector taking up AMP training since the market demand for this specialty service will be much higher.
Should there be more doctors interested in participating in the AMP scheme, the CUHK will consider running more full-time courses in occupational medicine to meet any proven demand. Moreover, the Hong Kong College of Community Medicine, which is the approving authority for AMP qualifications, is prepared to consider allowing other academic institutions run similar occupational medicine courses to cope with the demand.
4. Which party will be responsible for bearing the expenses of medical examination of casual/daily-rated workers?
Under section 6 of the proposed Regulation, all medical examinations, investigations and certifications required shall be arranged and conducted at the expense of the proprietor. It makes no difference whether the worker is permanent or casual/daily-rated.
5. The proposed arrangements for serving workers who are found medically unfit to continue working in that occupation.
We estimate that as far as AMP's medical reports are concerned, the number of workers found to be medically unfit for a job will be very small. Experience in Singapore supports this view. In most cases where minor symptoms are detected, the medical practitioners would recommend, in the interest of the safety and health of the employees, preventive and protective measures to be adopted by employers and employees. By following the medical advice, the employee should be able to continue his job.
An employee who is found to be medically unfit by an AMP and is granted sick leave will be entitled to sickness allowance under the Employment Ordinance (EO). During the period of paid sick leave, his employer is prohibited from terminating his contract of employment.
If, through the medical examination, an AMP detects that an employee has contracted an occupational disease, the employee will be entitled to employees compensation including periodic payment, where appropriate. During the period when periodic payment is payable, the employer is also prohibited from dismissing the employee.
With mutual agreement between the affected employee and the employer, the employee may be deployed to another job where the hazards concerned are not present. If, however, re-deployment is not available or the employee finds the new job unacceptable then the employer has to terminate the employment contract of the employee, by paying compensation in accordance with the contractual terms and the provisions of the EO.
Where the employee has no less than five years service and is certified to be permanently unfit for the job, he has a further option of leaving his job and obtaining long service payment in accordance with the provisions of the EO.
It is not appropriate nor fair to impose further financial burden upon the employer by requiring him to make, on top of the benefits conferred by the EO, pro-rata long service payment to an employee certified unfit for work with less than five years' service for the following reasons :
- The objective of the new Regulation is to protect the health of employees in the occupations or trades concerned. It is not our intention to increase or reduce the rights and benefits of employees under the EO. The rights and obligations of employees and employers under the EO will remain unchanged.
- The new Regulation already brings about additional costs for the employers, e.g. expenses of medical examination and termination compensation. To further increase their burden will also cause hardship to employers during the current economic adjustment, especially to the small employers.
- Employers will also suffer from the loss of service of an experienced employee.
When the new Regulation is brought into effect, the Labour Department would issue a guidance note to advise employers on what to do in these situations as a good people management practice. If there are problems, the employers and employees may seek help from the Labour Department.
6. The Administration to re-consider whether the proposed Regulation should cover employees in karaoke establishments.
Since a karaoke establishment is not an industrial undertaking under the FIUO, we do not think it is appropriate to cover employees in karaoke establishments under the proposed Regulation.