Provisional Legislative Council

PLC Paper No. CB(1)171
(These minutes have been
seen by the Administration)

Ref : CB1/BC/1/97

Bills Committee on
Legislative Provisions
(Suspension of Operation) Bill 1997

Minutes of Meeting held on Friday, 11 July 1997, at 4:00 p.m. in the Chamber of the Legislative Council Building

Members present :

Hon IP Kwok-him
Hon WONG Siu-yee
Hon James TIEN Pei-chun, JP
Hon HO Sai-chu
Dr Hon Raymond HO Chung-tai
Hon Mrs Selina CHOW, JP
Hon Ronald ARCULLI, JP
Hon MA Fung-kwok
Dr Hon Mrs TSO WONG Man-yin
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
Hon CHAN Choi-hi
Hon CHAN Yuen-han
Hon Andrew WONG Wang-fat, JP
Hon Kennedy WONG Ying-ho
Hon Charles YEUNG Chun-kam
Hon YEUNG Yiu-chung
Hon LAU Kong-wah
Hon Mrs Miriam LAU Kin-yee, JP

Members absent :

Prof Hon NG Ching-fai
Hon TSANG Yok-sing
Hon CHENG Yiu-tong
Hon Henry WU
Hon NGAI Shiu-kit, JP

Member in attendance :

Hon Henry TANG Ying-yen, JP

Public officers attending :

Mr Paul TANG
Director of Administration

Mr Vincent LIU
Assistant Director of Administration

Mr John Dean
Principal Assistant Secretary for Home Affairs

Mr Joseph WONG
Secretary for Education and Manpower

Mr Matthew CHEUNG
Deputy Secretary for Education and Manpower

Ms Esther LEUNG
Principal Assistant Secretary for Education and Manpower

Mr Patrick LAU
Deputy Secretary for Planning, Environment & Lands

Mr Stanley WONG
Principal Assistant Secretary for Planning, Environment & Lands

Miss J A Willis
Commissioner for Labour

Mr TSANG Kin-wo
Assistant Commissioner for Labour

Mrs Jenny CHAN
Assistant Commissioner for Labour (Rights and Benefits)

Mr Peter WONG
Senior Assistant Solicitor General

Ms Carmen CHU
Senior Government Counsel

Clerk in attendance :

Miss Polly YEUNG
Chief Assistant Secretary (1)3

Staff in attendance :

Mr Jimmy MA
Legal Adviser

Mrs Queenie YU
Senior Assistant Secretary (1)9

I. Election of Chairman

Mr IP Kwok-him was elected Chairman of the Bills Committee.

II.Meeting with the Administration

(PLC Paper Nos. CB(1)22/97-98, CB(1)30/97-98 and a summary report of a questionnaire survey conducted by the Hong Kong University tabled and subsequently despatched to all Hon Members)

2. Members noted that the Bill sought to suspend the operation of seven Ordinances which were introduced by Members of the previous Legislative Council and passed at the last sitting of the Council in June 1997.

3. In reply to the Chairman, members expressed divergent views on how deliberations should be conducted. Some members questioned the appropriateness of the Administration ' s introduction of a single Bill to deal with seven Ordinances on different subjects. As the background and areas of concern of each Ordinance were not the same, they held the view that the Administration should introduce separate bills to enable members to consider each case on its own merits. Other members stressed that the Bills Committee should focus on the Administration ' s proposal to suspend the seven Ordinances instead of scrutinizing each Ordinance in detail.

4. In reply, the Director of Administration responded that the present legislative approach was appropriate and viable. The Administration did not see the need to introduce separate bills to deal with the proposed suspension of the seven Ordinances. In this connection, members noted that should they decide not to support the suspension of some of the seven Ordinances, they might move Committee stage amendments to the relevant clauses in the Bill in accordance with the Rules of Procedure.

5. The Director of Administration stressed that the proposed suspension would allow time for the Administration to fully analyse the implications on Government policies and operations affecting the community at large. He assured members that upon completion of the review, the Administration would consult the Provisional Legislative Council on the findings and the proposed way forward not later than end of September 1997. In this regard, some members requested the Administration to stipulate in the Bill the proposed suspension period of the seven Ordinances. The Administration however explained that the proposed stipulation of a suspension period might pose practical problems as the time required for scrutiny of Amendment Bills, if such were introduced, was not within the control of the Administration.

6. After deliberations, members agreed that the Administration should brief them on the justifications for suspending each of the seven Ordinances.

Five labour-related Ordinances

7. The Secretary for Education and Manpower (S for E & M) reiterated that the five labour-related Ordinances were not based on the tripartite consensus of employers, employees and the Government at the tripartite consultative forum of the Labour Advisory Board (LAB). Members noted that at a special meeting to consider the five pieces of legislation in their draft form, the LAB did not support any of them and in some cases, required more time to study the provisions. S for E & M highlighted the adverse impact of the Ordinances on Hong Kong ' s economic competitiveness and the difficulties in implementing some of the legislative changes.

Employment (Amendment) (No. 4) Ordinance 1997

8. The Administration did not support the Employment (Amendment) (No. 4) Ordinance 1997 as it overlapped with the scope of protection for employees provided in the Employment (Amendment) (No. 3) Ordinance recently introduced and subsequently enacted. A member also opined that targeting protection at union members might be unfair to non-union members and create an adverse impact on employer-employee relationship.

9. The Assistant Commissioner for Labour (AC for L) stressed that the parallel operation of the two Amendment Ordinances which provided for different remedies for the wrongful act of dismissal under the Employment Ordinance would be highly undesirable and would create unnecessary confusion to employers, employees and the Court. He added that an employee might lodge a claim under both Amendment Ordinances and this would be unfair to employers. In this connection, Miss CHAN Yuen-han asked whether in general, provisions enacted at a later date would prevail over provisions on the same subject enacted on an earlier date. In response, the Legal Adviser (LA) advised that when dealing with statutory provisions in which there was apparent inconsistency, the court was entitled to ascertain the legislative intent by referring to the respective enactment dates of the relevant provisions and give effect to the provisions which, in its opinion, would accurately reflect the legislative intent.

10. S for E & M supplemented that the Employment (Amendment) (No. 3) Ordinance 1997 was supported by the LAB after extensive negotiations, whereas the Employment (Amendment) (No. 4) Ordinance was not supported by LAB which considered that issues related to the right of reinstatement had to be further examined. Whilst some members concurred with the Administration on the importance of tripartite consensus, a few members raised concerns on the respective roles of the LAB and the legislature in legislative reforms. In response, S for E & M opined that the LAB and the legislature played different roles regarding the labour related legislation. Whilst the legislature had the ultimate authority in making laws, owing to the need to strike a reasonable balance between the interest of employers and employees, it was important that the views of and any consensus reached by the LAB be respected.

11. Mr James TIEN, Mrs Selina CHOW, Mrs Sophie LEUNG LAU Yau-fun and Mr HO Sai-chu indicated support for the Administration ' s proposed suspension of the Employment (Amendment) (No. 4) Ordinance. Mr TIEN reiterated his objection to placing the onus of proof on employers, compulsory re-instatement and the award of costs by the court.

12. Responding to the Administration ' s comments that the Ordinance was hastily passed, Miss CHAN Yuen-han disagreed and reminded the meeting that the Employment (Amendment) (No. 4) Ordinance had been scrutinized by a Bills Committee under her chairmanship, thoroughly debated in the Council and enacted through proper legislative procedures. She did not consider that the issues raised in the Ordinance were so complicated and controversial that they should be suspended. In this regard, AC for L added that the Committee stage amendments subsequently introduced by the Member-in-charge had not been discussed at the Bills Committee.

13.After deliberations and at the request of members, the Administration undertook to provide a copy of the Employment (Amendment) (No. 3) Ordinance and information on legislative items proposed by the Administration and passed by LegCo without the prior endorsement of the LAB.LD

(Post-meeting note : A copy of the Employment (Amendment) (No. 3) Ordinance was tabled at the meeting on 14 July 1997 and the other information requested was circulated to members vide Paper No. CB(1)41/97-98 dated 15 July 1997)

Occupational Deafness (Compensation) (Amendment) Ordinance 1997

14. Apart from the fact that the Ordinance had neither been examined by a Bills Committee nor considered by LAB before its enactment, the Assistant Commissioner for Labour (Rights and Benefits) (AC for L (RB)) stressed that the legislative changes, which sought to improve the eligibility for and the amount of compensation, would cause the Occupational Deafness Compensation Board (the Board) to suffer from an annual deficit and would exhaust its funds in three years. She explained that a claimant with hearing loss at 50 dB would be assessed as having 5% permanent loss of earning capacity for the purpose of calculating the compensation payable under the original provisions but the percentage was raised to 10% by the Amendment Ordinance. In reply to members, she advised that as a result of the Amendment Ordinance, the Board had estimated an increase in new cases leading to a total of over 400 fresh applications in a year. At the same time, 100 old cases, which were hitherto ineligible, would become eligible for compensation. As regards the funding aspects, the Administration clarified that the Occupational Deafness Compensation Scheme (the Scheme) was financed by an across-the-board levy of 3.5% on the insurance premium of all employees ' compensation insurance policies which employers were required to take out under the Employees ' Compensation Ordinance. Members also noted that the levy income, which was shared by the Board, the Occupational Safety and Health Council and the Employees Compensation Assistance Fund Board, had been on the decrease in recent years.

15. AC for L (RB) informed the meeting that a Working Group (WG) of the Government comprising employers, employees, and medical professionals had completed a comprehensive review of the Scheme and recommended a package of improvements which included increasing the number of specified noisy occupations and improving the arrangement for hearing tests. The WG ' s recommendations would be considered by the LAB in late July 1997. Nevertheless, the likely financial problems caused by the Amendment Ordinance would practically preclude the Board from implementing the improvements suggested by the WG.

16. The Administration drew members ' attention to the absence of clear provisions in the Amendment Ordinance on how the 500 compensation claims which were made before the commencement of the Ordinance and were still being processed by the Board should be handled. Members were therefore urged to support suspension of the Ordinance. The Administration also undertook to report back to members the LAB ' s decision on the matter as soon as practicable.

17. Miss CHAN Yuen-han urged members not to support the proposed suspension as the Amendment Ordinance was compatible with the recommendations proposed by the WG and more claimants would benefit from its early implementation. The majority of members present agreed that this Ordinance was the least controversial among the seven Ordinances proposed for suspension. Whilst members had no strong objection to the implementation of the Ordinance, some members preferred the proposed suspension to enable the Administration to finalise its findings with a view to introducing a more comprehensive package of improvements.

Employment (Amendment) (No. 5) Ordinance 1997

18. AC for L explained that the Ordinance sought to include 1 May as an additional statutory holiday applicable to all employees in the private sector. Since the Ordinance had not been scrutinized by a Bills Committee and the list of general holidays for 1998 had been decided and published, the LAB considered that discussion of the subject should best be postponed until 1998 and any decision made should be implemented in 1999. Mr James TIEN remarked that as far as holiday entitlements were concerned, Hong Kong compared much more favourably to Taiwan, Singapore and South Korea. Nevertheless, he had no objection to designating 1 May as one of the two floating statutory holidays. Some members were not convinced of the Administration ' s reasons for suspending the Ordinance as there were no immediate implications. Members urged the Administration to make an early decision in order to minimize confusion and inconvenience caused to the community at large.

Employee ' s Rights to Representation, Consultation and Collective Bargaining Ordinance

19. AC for L briefed members on salient provisions of the Ordinance and advised that voluntary and direct negotiation between employers and employees at the enterprise level had been working well in Hong Kong. In presenting the Administration ' s reasons for opposing the Ordinance, AC for L stressed that the Ordinance had neither been examined by a Bills Committee nor supported by the LAB. In view of its far-reaching implications on Hong Kong ' s economic competitiveness and long-term development of labour relations, the LAB considered that the Ordinance should be further examined by its Committee on Labour Relations.

20. Commenting on the allegation that Hong Kong had not complied with the International Labour Convention No. 98, AC for L clarified that Hong Kong had applied this Convention in full since 1975. He added that the Convention only required Government to encourage and promote collective bargaining.

21. S for E & M reiterated the firm opposition of the Administration against the Ordinance which affected some 18,000 establishments employing about 1,330,000 employees. He urged members to support early suspension of the Ordinance so as to minimize its adverse impact on the labour relations system in Hong Kong. In reply to members, AC for L clarified that the Ordinance was applicable to employers and employees of all non-government organizations including grant and subsidized schools.

22. Mr James TIEN raised strong objection to the Ordinance. Some members cautioned that the far-reaching implications of the Ordinance must be carefully examined. Miss CHAN Yuen-han said that the labour sector supported the spirit of the Ordinance but agreed that its provisions would require further study. She also urged the Administration not to proceed with its review with the pre-conceived intention to repeal the entire Ordinance. In view of the contentious issues in relation to the Ordinance, members in general agreed to the proposed suspension to facilitate further examination by the Administration in consultation with the LAB.

Trade Unions (Amendment) (No.2) Ordinance 1997

23. In presenting the Administration ' s information paper, AC for L explained that the Ordinance was incompatible with the primary objective of a trade union and was not in the interest of union members. The Administration was concerned about possible politicisation of union activities and members were assured that the Government had all along been careful and flexible in exercising its powers under the Trade Unions Ordinance.

24. Mr James TIEN questioned the necessity and appropriateness of the amended provisions and indicated that members of the Liberal Party were against the Ordinance and would support the Administration ' s proposal to suspend the Ordinance in the mean time.

25. Some members were not convinced of the Administration ' s reasons to suspend the Ordinance as it had been scrutinized by a Bills Committee. Nevertheless, members noted that the Bills Committee had not reached any consensus on some of the contentious proposals in the Ordinance. AC for L added that employer representatives of the LAB did not support the Ordinance whilst employee representatives only supported some provisions in the Ordinance. Nevertheless, all members of the LAB objected to the use of union funds for purposes not related to the trade union.

26. Some members considered that the Administration should have proposed appropriate Committee stage amendments and questioned the Administration ' s intention to consult the LAB again. Mr HO Sai-chu, who was a member of the LAB, informed the meeting that the LAB only had time to discuss the broad principles of the Ordinance and agreed that its provisions should be scrutinised in greater detail. Miss CHAN Yuen-han said that the labour sector supported some provisions in the Ordinance such as the formation of cross-industry federations. She was of the view that the current legislative control on trade unions was too stringent and should be liberalised.

Protection of the Harbour Ordinance

27. The Deputy Secretary for Planning, Environment & Lands (DS for PEL) highlighted the Administration ' s grave concerns about the uncertainties caused by the declarative principle of presumption against reclamation in the central harbour and the public law duty on public officers and public bodies to have regard to the principle for guidance in the exercise of their powers when the Ordinance was totally silent on how the principle in Section 3 therein would operate. The Administration considered it necessary to suspend the operation of the Ordinance pending full clarification on the implications arising from the presumption and how this principle should be put into practice. The Principal Assistant Secretary for Planning, Environment & Lands (PAS for PEL) elaborated that the Ordinance defined ' reclamation ' as including any work over and upon any foreshore and sea-bed in the central harbour which might have serious implications on the on-going reclamation projects In reply to members, the Administration named the following major reclamation projects under planning in the central harbour which might be affected by the Ordinance:-

  1. Central Reclamation Phase 3;

  2. Central - Wan Chai Bypass;

  3. Wan Chai Reclamation Phase 2; and

  4. Kowloon Point Development.

He cautioned that in the absence of clear provisions on the implementation of the principle of presumption, the Administration would not be in a position to ensure that it had discharged its statutory duty under section 3 of the Ordinance.

28. Dr HO Chung-tai expressed concern about the uncertainties which might be caused to the four projects as a result of the Ordinance. Some Members were not convinced of the need to suspend the Ordinance in the absence of any major reclamation works being in progress.

29. Mr Ronald ARCULLI recalled that members of the Liberal party had grave reservations on the Protection of the Habour Bill and instead, suggested an alternative arrangement whereby the Victoria Harbour would be considered as a land use under the outline zoning plan and future reclamation of the harbour would be regarded as a change of land use under the jurisdiction of the Town Planning Board. PAS for PEL reiterated the Administration ' s agreement to the proposal as a substitute for the Bill subject to certain conditions under the existing provisions of the Town Planning Ordinance. Members noted that the proposal in question had been discussed at the relevant Bills Committee.

30. Having considered the written request of the Society for Protection of the Harbour (the Society) for a meeting with the Bills Committee, the majority of members present agreed that the Society should be invited to attend the next meeting of the Bills Committee and to present their views on the proposed suspension in 15 minutes.CAS(1)3

31. At members ' request, the Administration agreed to provide additional information on the possible impact of the Ordinance for further consideration.PELB

(Post-meeting note : The Administration provided an information paper which was tabled at the meeting on 14 July 1997.)

III.Any other business

32. Members agreed on the following courses of action:

  1. the next meeting of the Bills Committee would be held at 8:30 am on 14 July 1997; and

  2. proposed Committee stage amendments should reach the Provisional Legislative Council Secretariat by 1:00 pm on 15 July 1997.

33. Members also noted that the Chairman would report deliberations of the Bills Committee to House Committee on 15 July 1997 and that the Administration intended to resume Second Reading debate of the Bill on 16 July 1997.

34. The meeting ended at 8:00 pm.

Provisional Legislative Council Secretariat
26 August 1997