LegCo Paper No. CB(1)63/96-97
(These minutes have been seen by the Administration)
Ref : CB1/BC/38/95/2
Bills Committee on
Factories and Industrial Undertakings (Amendment) Bill 1996
Minutes of Meeting
held on Wednesday, 3 July 1996 at 10:45 a.m.
in Conference Room B of the Legislative Council Building
Members Present :
Hon Edward HO Sing-tin, OBE, JP (Chairman)
Dr Hon Edward LEONG Che-hung, OBE, JP
Hon LEE Cheuk-yan
Hon CHAN Yuen-han
Hon Lawrence YUM Sin-ling
Member Absent :
Hon Ronald ARCULLI, OBE, JP (Deputy Chairman)
Member Attending :
Hon Michael HO Mun-ka
Public Officers Attending :
- Mr Herman CHO
- Principal Assistant Secretary for Education and Manpower
- Mr MAK Sai-yiu, JP
- Assistant Commissioner for Labour
- Mr Vidy CHEUNG
- Senior Assistant Law Draftsman (Acting)
Attendance by Invitation :
- The Real Estate Developers Association of Hong Kong
- Mr S Y WAI
- Secretary General
- The Hong Kong Construction Association Ltd
- Mr Patrick W T CHAN
- Secretary General
Clerk in Attendance :
- Miss Polly YEUNG
Staff in Attendance :
- Mr LEE Yu-sung
- Ms Connie SZE-TO
Meeting with the Administration and deputations
(A list of main issues discussed at the last meeting of the Bills Committee on 1 July 1996 prepared by the Secretariat, the Administrations responses to the views of deputations and members and a written submission from the Hong Kong Construction Association Ltd were tabled at the meeting and attached at annex.)
Procedures for the issue of suspension notices
The Administration confirmed its concurrence to the suggestion that on discovery of a dangerous work situation, the visiting Factory Inspector (FI) would issue a written notice on the spot notifying the proprietor of the intention to issue a suspension notice (SN) and specifying clearly the circumstances warranting the issue of SN. If at the time the SN was to be served, the hazard had been rectified or removed, the notice would not be issued. This additional procedure would be included in the guidelines of the Labour Department (LD). The Administration considered it inappropriate to include the notice of intention to issue a SN as a statutory form, as previously suggested by a member, on the following grounds :
- The issue of the notice of intention to issue a SN was a procedural step which should not be included into the law in order to allow the greatest degree of flexibility in enforcement.
- The contents of a statutory notice of intention might bind the Commissioner for Labour (C for L) in the subsequent issue of the SN. The only legally binding notice to the proprietor should be the SN which had to be approved by a Deputy Chief Factory Inspector.
2. Members present at the meeting generally agreed to a two-tier arrangement under which the issue of SN should be preceded by the issue of the notice of intention which needed not be a statutory form. Some members considered that an amendment to this effect should be introduced. As the Administration had confirmed that it did not see the need for such provision in law, the Chairman indicated that he would move the necessary Committee Stage Amendments (CSAs) on behalf of the Committee. The meeting also noted Hon Ronald ARCULLIs intention to move certain CSAs to include the notice of intention as a Schedule to the Ordinance.
3. Hon Michael HO remained concerned that the maximum time-frame of 48 hours for the issue of SN was too long and urged the Administration to prescribe a shorter time-frame. Some members also requested the Administration to confirm its commitment to enhance industrial safety by making available sufficient manpower to undertake the task. In response, Mr S Y MAK said that the Administration had noted members concerns and would make the necessary staffing arrangements to ensure timely action in issuing SN, checking remedial action and where necessary, rescinding the SN. While the time-frame for the issue of SN would not be prescribed in the Ordinance, the LD would consider a shorter time-frame and include it in its performance pledge.
(Post-meeting note : Mr MAK wrote in on 4 July 1996 confirming that the LD would endeavour to issue a SN as soon as possible and in any case not later than 24 hours after the inspection.)
Technical memorandum to the Ordinance
4. Representatives of the Hong Kong Construction Association Ltd (HKCA) and the Real Estate Developers Association of Hong Kong reiterated the need for a Technical Memorandum (TM) to the Ordinance specifying the technical circumstances and situations warranting the issue of SN and IN. The TM, which would be legally binding, would serve as objective standards for enforcement and facilitate the proprietor in complying with safety requirements.
5. The Administration responded that apart from the difficulty involved in drawing up an exhaustive TM for this purpose, it was considered inappropriate to include administrative procedures or enforcement guidelines in a TM. The criteria for the issue of SN and IN would be included in LDs guidelines which would be made known to the public. Representatives were assured again that all parties concerned, including the Labour Advisory Board (LAB), relevant employers and employees associations, would be consulted when finalising or proposing major changes to the guidelines. The Secretary for Education and Manpower (SEM) would also be requested to address this point in the Second Reading debate of the Bill.
6. Members concurred that the Annexes of the LDs guidelines which specified the circumstances requiring the issue of SN and IN would suffice as reference to proprietors. Some members cautioned that the proposed TM would entail the introduction of subsidiary legislation and hence, delay the passage of the Bill. As to allay the concerns of the representatives, they also suggested that consultation on major revisions to the guidelines could be extended to professional bodies as well.
Administrative review by the Commissioner for Labour
7. Responding to the HKCAs proposal to stipulate a shorter time-frame in the Ordinance for the C for L to complete the administrative review if the proprietor chose not to refer the case to the Committee on Industrial Safety and Health under the LAB, the Administration advised that under such circumstances, the C for L could definitely determine the case sooner. However, it was not advisable to prescribe a shorter time-frame in law since there would be difficulty for the C for L to complete a large number of reviews within a short period of time following a series of blitz enforcement operations mounted from time to time which had resulted in the issue of many SNs.
Offences and penalties
8. The Administration confirmed that under normal circumstances, when an IN had been complied with, no prosecution on the relevant breaches would be taken out against the proprietor. While the Administration agreed to consider explaining its position in SEMs address at the Second Reading debate, it would not include clause(s) to this effect in the Bill as this might undermine the Administrations enforcement power. In this connection, Mr Michael HO remarked that the Administrations enforcement power should be preserved and that ruling out explicitly the possibility of prosecution might have the undesirable effect of encouraging offenders to repeat the breaches.
9. As regards whether it was appropriate to add new clause(s) to the effect that compliance with IN/SN would not be construed as self-incrimination by the proprietor, the Administration would seek advice from the Attorney Generals Chambers (AGC) and would revert to members as soon as possible before the House Committee meeting on 5 July 1996.
10. At the request of the Chairman, ALA1 advised that in a criminal prosecution, an admission must be voluntary in order to be admissible. In the context of an act done in compliance with the IN/SN, the proprietor was in fact compelled by law to comply. Therefore, his act of compliance could not be taken as a voluntary act to amount to an admission of guilt. Without further evidence, it was unlikely that a proprietor could be convicted simply on the basis of his compliance with a statutory notice.
(Post-meeting note : AGCs written advice and ALA1s comments were circulated vide LegCo Papers No. CB(1)1764 and 1770/95-96.)
(CSAs to be moved by the Administration was tabled at the meeting and attached at annex.)
11. ALA1 advised that the three CSAs to be moved by the Administration to clauses 2 and 3 of the Bill were in order. The proposed amendments were agreed to by members.
12. In view that a SN was targeted at hazardous operation causing imminent danger to workers, the Administration upheld that failure to comply with a SN should be a strict-liability offence. In the rare circumstances that it was in the public interest to continue with the hazardous work, for example, if it was reasonably believed that suspension of a slope stabilisation project might cause serious landslide, the C for L would not issue the SN. In this connection, ALA1 remarked that unless stipulated otherwise in the law, the court was bound to consider the reasons for non-compliance before convicting a defendant under the proposed section 10(9).
13. The meeting noted that the Chairman would make a verbal report on the Committees deliberations to the House Committee at its meeting on 5 July 1996. A written report of the Bills Committee would be circulated to Members before resumption of the Second Reading debate on 10 July 1996.
(Post-meeting note : The written report of the Bills Committee was circulated vide LegCo Paper No. CB(1)1782/95-96 on 8 July 1996.)
14. The meeting ended at 12:00 noon.
4 October 1996
Last Updated on 11 December 1998