LegCo Paper No. CB(1) 920/96-97
(These minutes have been seen
by the Administration)
Ref : CB1/BC/5/96
Bills Committee on Occupational Safety and Health Bill
Minutes of Meeting held on Wednesday, 15 January 1997 at 8:30 a.m. in Conference Room B of the Legislative Council Building
Members present :
Hon Michael HO Mun-ka (Chairman)Members absent :
Dr Hon LEONG Che-hung, OBE, JP
Hon LEE Cheuk-yan
Hon CHAN Yuen-han
Hon LEE Kai-ming
Hon LEUNG Yiu-chung
Hon Ronald ARCULLI, OBE, JPPublic officers attending :
Hon CHEUNG Man-kwong
Hon James TIEN Pei-chun, OBE, JP
Hon Andrew CHENG Kar-foo
Hon LAW Chi-kwong
Clerk in attendance :
- Mr Herman CHO
- Principal Assistant Secretary for Education and Manpower
- Mr Duncan Berry
- Senior Assistant Law Draftsman
- Mr K F LEE
- Deputy Commissioner for Labour
- Mr William SIU
- Assistant Commissioner for Labour
- Dr W K LO
- Occupational Health Consultant Labour Department
- Mr H K MAK
- Chief Factory Inspector
Staff in attendance :
- Ms Estella CHAN
- Chief Assistant Secretary (1)4
- Mr Arthur CHEUNG
- Assistant Legal Adviser 5
- Mr Daniel HUI
- Senior Assistant Secretary (1)7
I Confirmation of minutes of meeting
(LegCo Paper No. CB(1) 685/96-97)
1. The minutes of the meeting on 10 January 1997 were confirmed.
II Meeting with the Administration
2. Members agreed that the Bills Committee would also study the draft Occupational Safety and Health Regulation (OSHR) as the draft OSHR had been provided to Legislative Council (LegCo) Members vide the relevant LegCo Brief, and the Administration's intention was for the future Occupational Safety and Health Ordinance (OSHO) and OSHR to come into operation almost at the same time. The Chairman undertook to report to the House Committee on this agreement.
(Post-meeting note: The Chairman gave a verbal report at the House Committee meeting on 17 January 1997.)
3. The Principal Assistant Secretary for Education and Manpower (PAS/EM) briefed members on the background, scope and purpose of the Occupational Safety and Health Bill (the Bill) as contained in the relevant LegCo Brief. He remarked that the Bill was intended to be an enabling ordinance. Specific requirements for various aspects of occupational safety and health as set out in paragraph 3 of the LegCo Brief would be prescribed in a number of regulations to be introduced in stages.
4. The Deputy Commissioner for Labour (Dep C for L) advised that the Administration considered that a new strategy whereby the emphasis was on the preventive aspects rather than the curative aspects should be adopted for promoting occupational safety and health in the community. Hence, the new legislation would be supported by educational and promotional programmes so as to cultivate among employers and employees a general awareness and understanding of the spirit and practical aspects of the new safety and health legislation in the workplace.
5. Regarding the timetable for the introduction of the regulations to be made under the Bill after the latter was passed, PAS/EM advised that the Administration proposed that as a first stage, both the future OSHO and the future OSHR should come into operation one year after the enactment of the Bill. Other sets of regulations would be introduced in phases after the future OSHR had come into operation, so that practical experience could be taken into account in the course of developing the rest of the legislative framework for occupational health and safety.
Scope of workers covered by the Bill
6. PAS/EM advised that the Bill would apply to all workplaces with the four exceptions set out in the proposed definition of "workplace" in Clause 3. It was estimated that out of the 2.3 million workers employed in non-industrial undertakings, 0.5 million would not be covered by the Bill. He added that the Administration intended that, in time, the future OSHO would supersede the Factories and Industrial Undertakings Ordinance (FIUO). At present, 800,000 workers were employed in factories and industrial undertakings covered by FIUO.
Application of requirements in the OSHR to medium and small businesses
|7. Members noticed that businesses employing less than a prescribed number of employees would be exempted from some of the requirements in the draft OSHR. It was also stated in the LegCo Brief that the Administration proposed to exempt small businesses from some of the provisions in the future regulations. They requested the Administration to elaborate on the policy under the draft OSHR on the application of the requirements to medium and small businesses. Dep C for L advised that in drawing up the draft OSHR, it was recognized that there were practical difficulties for small businesses to comply with certain requirements and for the Administration to enforce those requirements on them. As no statistics had been kept on the relationship between injuries and deaths at work and the number of employees in the workplace for non-industrial undertakings, he offered to provide information on the relationship between the number of first-aiders and the number of employees in the workplace in UK and Australia.||Admin|
(Post-meeting note: Subsequent to the meeting, the Administration provided the following information-
"In the United Kingdom's Health and Safety (First-Aid) Regulations, there is no ratio between the number of first aiders and the number of employees. However, in its Approved Code of Practice, it is recommended that as a guide in establishments with relatively low hazards such as offices, shops, banks or libraries, it would not be necessary to provide a first-aider unless 150 or more employees were at work, and a ratio of one first-aider per 150 employees would probably be adequate. In Australia, there is no ratio set for the number of first-aiders in relation to the number of employees either. In its First-Aid Code, there should be sufficient first-aid personnel for all work shifts. In certain high risk situations, where the number of employees exceeds 300, consideration should be given to employing a full-time occupational health professional with relevant first aid experience, such as a registered nurse.")
8. In response to members' enquiry on whether there would be difficulties in recruiting the proposed 163 additional officers to promote, enforce and provide advice on the new legislation, Dep C for L advised that the Labour Department had not experienced difficulty in recruiting sufficient factory inspectors, who were responsible for the enforcement of FIUO, over the past few years. He added that the proposed 163 posts included posts for factory inspectors, medical and nursing officers and occupational hygienists. When the future OSHO came into operation, existing and newly appointed factory inspectors and occupational hygientists would be responsible for the field inspections and the handling of complaints in respect of both industrial and non-industrial undertakings.
Commencement of operation of the future OSHO
|9. Mr LEE Cheuk-yan opined that the future OSHO should come into operation immediately after enactment as it would only prescribe the general duties, which represented no more than the existing safety and health standards in a workplace which the average employer had been following at present. Therefore, it should not require much time to convey the simple message of "general duties" to the employers concerned. The promotion and education programmes could commence even before enactment of the Bill.||(Clause1)|
10. PAS/EM advised that as non-industrial employers were not familiar with the statutory general duties to ensure safety and health of employees at the workplace, it would be unreasonable to require them to abide by the statutory provisions immediately after the Bill was enacted. It was estimated that there would be about 260,000 non-industrial undertakings covered by the Bill and it would require some time for the Government to convey the principles and requirements under the new legislation to all these businesses.
11. Some members pointed out that the Government had been conducting public education on occupational safety and health for quite some time. The principles of the Bill should not be new to employers and employees at large. They were not convinced that a one-year grace period was necessary.
Appointment of occupational health specialists by employers
12. Dr LEONG Che-hung noticed that under the Bill, medical practitioners were required to notify the Commissioner for Labour of any case of a worker suspected or identified to be suffering from an occupational disease. In this connection, he enquired if the Administration would consider including a statutory requirement regarding the appointment of occupational health specialists, full-time or part-time, by employers to supervise and give advice on aspects relating to occupational health and safety in the workplace. PAS/EM advised that this proposal had not been considered in the course of drawing up the Bill and the draft OSHR. However, the Administration would consider the need for this requirement in the future review on the operation of the future OSHO and OSHR. Dr LEONG expressed dissatisfaction that the Administration had not given consideration to this respect in drawing up the proposed legislation as this issue had been raised at a LegCo motion debate in 1990.
Definition of occupational diseases
13. In response to a member's enquiry on the reason for not including "back pain" as an occupational disease in Schedule 2 to the Bill, the Occupational Health Consultant explained that the basic criterion for defining a disease as an occupational disease was that workers of a particular occupation were more likely to have incurred that disease in the course of their work than in other circumstances. While "back pain" might be fairly common among workers of certain occupations, it could have been incurred under many circumstances other than at work. However, if the symptom was attributed to a particular incident at work, it would be considered as a work related injury.
Responsibility for safety and health of employees at work
(Clauses 6 to 8)
General duties of employees
14. Members noticed that under FIUO, both proprietors and employees had statutory general duties to ensure the safety and health of employees as prescribed in sections 6A and 6B respectively. However, there was no provision regarding employees' general duties in the Bill. Dep C for L explained that the Ad Hoc Committee on General Duties under the Labour Advisory Board (LAB) had had substantial discussion on the issue of whether the Bill should include any general duties provisions. Having considered the Attorney General's Chambers' advice that it would not be a complete piece of legislation if the employer's general duties to ensure the safety and health of employees, which was the primary concern of the proposed legislation, were not laid down in the Bill, the Ad Hoc Committee finally decided that provisions prescribing employers' general duties should be included in the Bill but provisions regarding employees' general duties were not necessary. The rationale was that in non-industrial settings, it would suffice for employees to have a general understanding of the factors conducive to occupational safety and health. Such could be well achieved through education rather than legislation.
15. Dr LEONG Che-hung expressed reservation about the absence of provisions regarding employees' general duties in the Bill and suggested that the Bills Committee should further examine this aspect.
General duties of employers and occupiers
16. Regarding the general duties of employers and occupiers, PAS/EM advised that after much negotiation among the different parties represented in the Ad Hoc Committee, the Ad Hoc Committee finally came to a consensus that the general duties of employers should be laid down in the principal ordinance but should not be accompanied by penalty provisions. Penalties should be prescribed in respect of the specific requirements in the regulations to be enacted under the future OSHO. He further explained that although clause 8(1) provided that failure to comply with the general duties in clauses 6 and 7 in itself would not create criminal liability, clause 8(2)(a) provided that non-compliance would trigger the improvement notice mechanism and failure to comply with an improvement notice, without reasonable excuse, would be an offence as provided in clause 9. Furthermore, under clause 8(2)(b), employers and occupiers would still be subject to the operation of the common law relating to actions for recovery of damages for death or bodily injury.
17. Dep C for L advised that the general duties provisions were only incorporated into FIUO in 1989. Since then, the authority had invoked these provisions only when no provisions in the regulations could apply and serious bodily injuries or death had been caused. In 1995, only about 2% of the total number of prosecutions under FIUO were related to the general duties provisions. According to past experience, the chance of serious accidents was much smaller in non-industrial settings. The policy intention with regard to employers' or occupiers' general duties in non-industrial settings was that at the initial implementation period, instead of prosecuting an employer or occupier instantly upon failure to comply, the authority would serve an improvement notice or exercise its functions under Part V of the Bill so as to give an opportunity for the employer or occupier to make the necessary improvement.
18. Mr LEE Cheuk-yan asked whether there was any contradiction between clause 8(1) and clause 8(2)(b) such that the former provision would prevail over the latter and thus nullify the liability of an employer or occupier at common law. The Senior Assistant Law Draftsman replied that the effect of the two provisions was to preclude any direct criminal or civil liability arising as a result of a contravention of clause 6 and 7. However a contravention of either of those clauses would allow an occupational safety officer to issue an improvement notice to secure compliance with either of these provisions. Failure to comply with such a notice would be an offence which would render the employer or occupier concerned liable to prosecution. On the other hand, the provisions would not restrict the application of the common law for recovery of damages from an employer or occupier for the death of, or bodily injury to, an employee.
19. The Assistant Legal Adviser (ALA) advised that the provisions regarding employers' general duties in the Bill were drawn up on the basis of those regarding proprietors' general duties in FIUO but were different from the latter in that failure to comply with the general duties in FIUO would give rise to criminal liability, while in this Bill, such non-compliance would not give rise to criminal liability. The purpose of clause 8, as had been explained by the Administration, was to provide that failure to comply with the general duties provisions would trigger the improvement notice mechanism. Criminal liability would arise only if an improvement notice had been served and the employer or occupier had subsequently failed to comply with the improvement notice. The effect was that if none of the specific provisions in the future regulations could be used to impose criminal liability in a case of injury or death in the workplace, the authority would not be able to fall back on failure to comply with the general duties provisions in clauses 6 or 7 to prosecute the employer or occupier concerned. Hence, clauses 6, 7 and 8 would serve a preventive purpose by way of triggering the improvement notice mechanism, but would not serve as a legal basis for prosecution against an employer or occupier. In a nutshell, the general duties provisions in clauses 6 and 7 were not directly enforceable given the provisions in clause 8.
20. On the difference between the duty of care under common law and the general duties provisions in the Bill, ALA advised that the former only covered principally of safety while the latter covered both safety and health. The former also did not cover the specific requirements prescribed in clause 6(2)(b). In addition, common law actions could be taken only when there were actual damages.
21. ALA also advised that although general duties provisions which were not directly enforceable were not common, it was legally in order for such provisions to be made. The issue of whether failure to comply with the general duties should be made an offence was a policy issue.
|22. Members in general did not subscribe to the view that failure to comply with the general duties in clauses 6 and 7 in itself should not give rise to criminal liability. They were concerned that without any penalty provision for non-compliance, the primary purpose of the proposed legislation to ensure the safety and health of employees in non-industrial undertakings could hardly be attained. They also questioned if the proposed general duties provisions were meaningful at all, as they would not constitute a legal basis in addition to the duty of care under common law for recovery of damages for injuries and deaths at work.||Admin|
23. Miss CHAN Yuen-han expressed reservation that representatives of trade unions and workers' associations in LAB had agreed to the general duties provisions in the Bill, which she found was a regressive step on the way to promoting occupational safety and health. In order to better understand the Ad Hoc Committee's and LAB's deliberation on the general duties provisions, members requested, and the Administration agreed, to provide the relevant records to the Bills Committee.
24. At members' request, the Administration also agreed to provide a paper to delineate the differences between the duty of care under common law and the general duties provisions in clauses 6 and 7, to explain under what circumstances the non-compliance with clauses 6 and 7 would be actionable under common law given the present drafting of clause 8, and to review the policy objective behind these clauses with a view to deterring non-compliance.||Admin|
(Post-meeting note: The relevant information requested in paragraphs 23 and 24 above has been provided for the meeting on 28 January 1997.)
25. The Chairman expressed the view of the Democratic Party that the Party did not agree to the policy that non-compliance with the general duties in non-industrial undertakings would not give rise to criminal liability, even though it would trigger certain administrative actions. Legislative provisions to this effect would defeat the purpose of providing adequate protection for the safety and health of employees employed in non-industrial undertakings.
III Date of next meeting
26. The next two meetings were scheduled for 24 January 1997 at 10:45 am and 28 January 1997 at 8:30 am. The Bills Committee would meet deputations in the meeting on 24 January 1997.
VI Any other business
27. Members noted that Mr LAW Chi-kwong had given notice to withdraw his membership on the Bills Committee.
28. The meeting ended at 10:30 am.
Legislative Council Secretariat
20 February 1997
Last Updated on 30 November 1998