LegCo Paper No. CB(1) 1187/96-97
(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 Tuesday, 25 February 1997, at 2:30 p.m. in Conference Room B of the Legislative Council Building

Members present :

    Hon Michael HO Mun-ka (Chairman)
    Hon James TIEN Pei-chun, OBE, JP
    Hon LEE Cheuk-yan
    Hon CHAN Yuen-han
    Hon LEE Kai-ming

Members absent :

    Hon Ronald ARCULLI, OBE, JP
    Dr Hon LEONG Che-hung, OBE, JP
    Hon Andrew CHENG Kar-foo
    Hon LEUNG Yiu-chung

Public officers attending :

    Mr Matthew K C CHEUNG
    Deputy Secretary for Education and Manpower
    Mr Tony Reynalds
    Principal Assistant Secretary for Education and Manpower
    Ms Christine TANG
    Assistant Secretary for Education and Manpower
    Mr K F LEE
    Deputy Commissioner for Labour (Occupational Safety and Health)
    Mr William SIU
    Assistant Commissioner for Labour (Occupational Safety)
    Dr W K LO
    Occupational Health Consultant Labour Department
    Mr H K MAK
    Chief Factory Inspector (Support Services)
    Mr Duncan Berry
    Senior Assistant Law Draftsman

Clerk in attendance :

    Ms Estella CHAN
    Chief Assistant Secretary (1)4

Staff in attendance :

    Mr Jonathan Daw
    Consultant (Legal Service)
    Miss Anita HO
    Assistant legal Adviser 5
    Mr Kenneth KWOK
    Senior Assistant Secretary (1)2

I Confirmation of minutes

1. The minutes of the meeting held on 15 January 1997 were confirmed.

II Discussion with the Administration

(LegCo Paper No CB(1) 969/96-97)

Matters arising from the meeting on 28 January 1997

The exclusion of "a vehicle while it is in a public place" from the definition of a "workplace"

2. The Deputy Secretary for Education and Manpower (Dep S for EM) explained that a vehicle while in a public place was not included as a workplace for the purpose of the Bill, which was intended to provide protection to the safety and health of persons at work in both industrial and non-industrial sectors. Control over moving land transport vehicles, their drivers and passengers was stipulated under road traffic legislation. Admin

3. Members pointed out that a person working in a moving vehicle, who was not the driver nor a passenger, e.g. an employee selling food in a moving train, would not be covered by any legislation. Deputy Commissioner for Labour (DC for L) accepted that employees other than the driver, and who were not passengers, working in a stationary or moving vehicle in a public place should be covered by the ambit of the legislation. He agreed to provide proposed amendments in this regard to the Bills Committee for consideration.

4. Regarding protection of employees from hazards not caused by a moving vehicle itself, e.g. dangerous chemicals carried in a lorry, DC for L advised that transportation of dangerous goods were regulated by the Fire Services Department. As to accidents within a moving vehicle caused by factors which had nothing to do with the vehicle, Dep S for EM advised that such incidents were covered by the Road Traffic Ordinance. Consultant/Legal Service (CON/LS) said that the information provided by the Administration had been accurate to date but he would provide advice with authority on this aspect at a later stage.Admin

5. Mr LEE Cheuk-yan opined that the Bill should require an employer to provide a reasonably comfortable working environment to his/her employees in a workplace, including a moving vehicle. Requirements on temperature, noise level and ergonomics etc. should be stipulated. DC for L said in response that to achieve this purpose, it would be more effective to deal with the problem at source by incorporating the occupational safety and health requirements into Transport Department’s regulations for application at the vehicle examination stages, rather than to deploy inspectors to check whether the vehicles fulfilled the relevant requirements after the vehicles had been put into use. He undertook to convey Mr LEE’s view to the Transport Department for consideration.

6. As regards the occupational safety and health requirements for air transport workers, DC for L advised that the Civil Aviation Department had in place administrative measures to ensure the safety and health of persons working in the restricted areas inside the airport and these requirements were stricter than those for other workplaces.

Protection for the self-employed who were de-facto employees

7. As to persons who were technically self-employed, but were actually in a de-facto employment relationship with an employer, the Administration considered it unnecessary to make any changes to the Bill to extend the protection specifically to these persons. Under the Bill, the onus was placed on an employer to provide a safe working place for his employees and on an occupier of premises to provide a safe working place for the employees of another employer while they were working at the occupier’s premises. In case of dispute over whether there was an employment contract between an employer and a worker, the court would make a decision based on evidence given by the parties concerned. It was unlikely that an employer could escape liability by simply labelling an employee as "self-employed".

Onus of proof

8. Mr James TIEN Pei-chun raised the concern that imposing the onus of proof on the employers to disprove their liabilities would contravene basic principles of common law. Chief Factory Inspector/Support Services (CFI/SS) explained that in most situations, it was the inspectors’ responsibility to point out the inadequacy of safety facilities. However, under clause 38 (onus on defendant to prove certain matters) of the Bill and section 18 of the Factories and Industrial Undertaking Ordinance (FIUO), it would be a defence if an employer could show that he/she had done what was reasonably practicable to ensure the safety of employees. For example, for claims about harmful gases in the ventilation system in a workplace, it was the Labour Department’s responsibility to prove that the air quality inside the factory was bad. To refute his/her liabilities, the factory owner should then show that he/she had done what was reasonably practicable to prevent such a problem. CFI/SS also advised that this concept of taking reasonably practicable steps to comply with the requirement also existed in other ordinances.

9. CON/LS added that the provision regarding the onus of proof was based on the legislation of overseas countries particularly the UK and was quite common in the laws of Hong Kong.

Proposed amendments to clauses 6, 7 and 8

10. Draft Committee stage amendments (CSAs) to clauses 6, 7 and 8 to bring the Bill in line with FIUO in respect of the "general duties" and penalty provisions had been prepared by the Legal Service Division and was tabled at the meeting. CON/LS commented that there were a number of ways to achieve the purpose and the present draft was prepared for discussion purposes only.Admin

11. Regarding the proposal to bring the Bill in line with FIUO in respect of employees’ liabilities, DC for L advised that the Labour Department had consulted employer members of the Labour Advisory Board (LAB) who had not raised any objection. The Administration would report to the Bills Committee regarding the result of consultation with LAB. Most members present, with the exception of Miss CHAN Yuen-han, agreed that the Bill should be brought in line with FIUO with regard to employees’ liabilities. Miss CHAN Yuen-han said that the Federation of Trade Unions would reserve its position on the issue, pending the outcome of the Administration’s consultation with employee members of LAB.Admin

12. The Chairman requested the Administration to provide draft CSAs after consultation with LAB.

Clause 5 : Ordinance to bind Government

13. Clause 5 provided that the Bill would bind Government, but neither Government nor any public officer in the officer’s capacity as such was liable to be prosecuted for an offence against the Ordinance. DC for L explained that the rationale behind this clause was that Government, being the largest employer in the territory, was obliged to provide safe and healthy workplaces for its employees. However it would be inconceivable for Government to prosecute itself. Hence, clause 5 provided that Government or any public officer should not be held criminally liable for such offence.

14. CFI/SS pointed out that Government was not bound by FIUO but any breach of FIUO by a public officer would lead to disciplinary actions in accordance with General Regulation 700. Similarly, internal disciplinary action could also be taken against a public officer in breach of the Bill. Senior Assistant Law Draftsman (SALD) added that although clause 5 exempted Government or a public officer from criminal liabilities under the Bill, an aggrieved person was not precluded from bringing civil proceedings against Government e.g. by seeking an injunction from the High Court to prevent the continuance of the breach of the legislation.

15. Assistant Legal Adviser 5 advised that similar provisions exempting civil servants from criminal liabilities were also found in the Water Pollution Control Ordinance (Cap 358), the Air Pollution Control Ordinance (Cap 311), and the Marine Parks Ordinance (Cap 476).

Clause 15 : Medical practitioner to notify occupational disease to the Commissioner for Labour

16. As regards whether it was reasonable to impose liabilities on those medical practitioners who failed to report to the Commissioner for Labour the occupational diseases listed in Schedule 2, Occupational Health Consultant indicated that the Administration would prepare a form, which would list out all the diseases, to assist the medical practitioners in reporting occupational diseases identified. SALD added that there were similar provisions in FIUO.

Clause 30 : Misuse of articles provided for safety or health of employees

17. In relation to the offence of misusing articles provided for safety or health of employees under clause 30, SALD advised that the clause was limited to the operation and use of articles such as safety equipment provided in the interest of safety and health of employees. CON/LS agreed with this interpretation.

One-year grace period

18. Mr LEE Cheuk-yan disagreed with the allowance of a one-year grace period for compliance after enactment of the Bill and requested the Administration to provide justifications in writing. The Administration also undertook to provide responses to written submissions of the nine deputations who met with the Bills Committee at the meeting on 24 January 1997.Admin

(Post-meeting note: The Administration’s responses to the nine written submissions were circulated vide LegCo Papers No. CB(1) 1017 and 1078/96-97. An information paper provided by the Administration in response to issues outstanding from the current meeting was circulated vide LegCo Papers No. 1072 and 1077/96-97.)

Date of next meeting

19. Members agreed that the next meeting would be held on Friday, 14 March 1997, at 4:30 pm

20. The meeting ended at 4:20 pm.

Legislative Council Secretariat
3 April 1997

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