Minutes of Meeting of the Bills Committee to study
the Buildings (Amendment) (No. 3) Bill 1995

I. Confirmation of minutes of last meeting

The minutes of meeting held on 27 October 1995 (Ref: LP No. HB 118/95-96) was confirmed.

Action

II. Meeting with the Hong Kong Institute of Architects (HKIA)

2. The submission of the HKIA was at Appendix I to LP No. HB 119/95-96.

3. The representatives highlighted the following essential points with diagrams :

1. Whilst the HKIA supported the objective of the Bill to improve safety on construction sites, including the proposed new registration system for authorized persons (AP), structural engineers (RSE) and contractors, it objected to the enactment of the Bill in its present form, in particular clauses 12, 13 and 17.
2. The AP and RSE were required by law to design building and street works in accordance with the Buildings Ordinance and associated regulations and to carry out periodic supervision to ensure that the works were carried out in general accordance with the law. The responsibility for construction rested with the registered contractor (RC) who was in complete control over the building site, the building operation, his pool of management and supervisory staff, machine operators and workers and all the equipments utilised by him in the building operation. The AP and RSE were not in control of the day to day site operation, hence it was unacceptable to the HKIA that clauses 12 and 13 imposed the responsibilities on AP/RSE to ensure the safety of the works and the compliance of conditions for consent to the commencement of works. Neither did the HKIA accept clause 17 on proposed criminal sanction for not supervising in accordance with the supervision plan. Under the Buildings Ordinance, there was already criminal sanction on AP/RSE who, in carrying out the building works, had caused injury or a risk of injury to any person or damage to any property.
3. The Bill as proposed by the Buildings Department showed a lack of understanding of the practical aspects of building operations in Hong Kong. It not only failed to recognise and made a clear distinction between the very different roles of the design professionals (Architects and Engineers) and the construction professionals (the Contractors) but rather it duplicated and blurred the responsibility and roles in a way which would lead to confusion and legal difficulty. The Bill, if implemented, would find itself at odds with Building Codes in UK, the US, Canada, and Australia where it was considered unnecessary to apply such draconian controls. To that extent the Bill was obviously an unnecessary overkill out of line with international norms adopted elsewhere.
4. The professional institutions had written to Government on several occasions on their proposal to upgrade their representation on building sites, depending on the scale and complexity of a building project, by installing either part-time or full-time technically competent persons to spot-check the qualitative aspect of the work of the RC and to monitor the works to ensure they were carried out in accordance with the approved building plan. The professional institutions suggested that the appointment of such persons could be a condition for consent to the commencement of works.
5. The HKIA considered that to encourage/require improvement in the registration and site operations of RC was the right way to enhance site safety. It supported the Administration’s efforts to upgrade the training of construction workers and machine operators and the promotion of safety officers and safety auditors as part of the RC’s team.
6. The HKIA proposed that clauses 12 and 13 be amended to clearly delineate the respective responsibilities of AP/RSE and RC and clause 17 on criminal sanction be deleted. It also objected to the draft Building (Administration) Regulation on the supervision duties of AP/RSE. Until the draft Regulations were amended to a workable manner with the help of the professional institutions and Hong Kong Construction Association, the HKIA would oppose the passage of the Bill.

4. In response to Members’ questions, the representatives provided the comments below.

1. There was no simple answer as to who should be held liable for the occurrence of an accident. Although the size and height of hoarding was designed by the AP/RSE in demolition works and approved by the Buildings Authority, how the workers proceeded with the demolition was important. At a large construction site, it was unrealistic to expect even the RC, not to say the AP/RSE, to monitor every step taken by each of the workers.
2. On paragraph 12 of its submission, the HKIA clarified that although there were currently more than 1,000 AP and RSE on the registered lists, only the principals of architectural and engineering firms were normally appointed to submit plans on behalf of clients, which involved about 100 or so thereon. To require these 100 persons to inspect personally over 1,000 sites in Hong Kong which covered tens of millions of square feet of construction and to hold them personally liable for it was neither realistic nor fair. In practice, these 100 or so persons delegated their supervision responsibilities to various persons in their firms. Supervision of construction sites was therefore a corporate not a personal responsibility.
3. In construction industry, the appointment of an AP/RSE and a RC was on contractual basis. Under the contracts, the AP/RSE and the RC were to perform different functions and take up different responsibilities. Whilst the AP/RSE was required to carry out periodical supervision to ensure that the works were carried out in accordance with the approved building plans, the building operation and how the works should be carried out fell within the domain of the RC. The RC was a profession by itself having its own expertise. Construction site workers were the employees of the RC or sub-contractor, not the AP/RSE. Should the AP/RSE find any works being carried out by workers not in accordance with the plan, he was not in a position to direct the workers concerned to cease work at once. The AP/RSE would have to take the matter up with the RC. Therefore it was incorrect to expect the AP/RSE to ensure site safety. Only the RC who was in control of the operation site could discharge this duty.
4. Before the introduction of the Bill, an ad hoc subcommittee had been set up under the Land and Building Advisory Committee to study the various proposals. Although the professions had expressed their views, the Administration had not taken them into account and decided to go for its own way.

III. Meeting with the Hong Kong Construction Association (HKCA)

5. The submission of the HKCA was at LP No. HB 143/95-96.

6. The representatives said that the HKCA considered it an improvement that the Bill recognized that every party involved in the building process had a role to play regarding public safety. It welcomed the preparation of a supervision plan specifying the duties of different parties in site supervision. Nevertheless, the HKCA was concerned about the interpretation of the term "continuous supervision" in the proposed section 9(5)(a). To provide continuous supervision was already a duty on the RC under the existing Buildings Ordinance and this duty was understood to be in relation to the quantity of supervision. The Bill and the Amendment Regulations required the RC to carry out site supervision "in the prescribed manner" and this referred to the qualitative aspect of supervision. Site supervision was provided by the RC’s supervisory team, not the RC alone. If an approved supervision plan was followed but an accident occurred nevertheless, disputes might arise as to whether the RC had provided continuous supervision. Under these circumstances, the meaning of "in the prescribed manner" might be at odds with that of "continuous supervision". If the word "continuous" was to retain, then section 40(2AA) should be amended to state clearly that the carrying out of supervision strictly in accordance with the supervision plan should constitute a defence in any prosecution for a contravention of section 9(5)(a).

7. In response to Members’ enquires, the representatives of the HKCA provided the following comments :

1. Whilst the HKCA suggested that the word "continuous" be deleted from the proposed section 9(5)(a), it agreed that site supervision should be provided by the RC’s team on a continuous basis.
2. The AP/RSE and the RC had their respective responsibilities and there should not be any confusion. The RC was in control of the day-to-day management of the site. The AP/RSE, being the representative of the owner, monitored the works of the RC to ensure that they were in compliance with the owner’s requirements. Within the terms specified in the relevant contract, the AP/RSE could exercise the power to order cessation of works under certain circumstances.
3. If the Government was intended to monitor not only site supervision but also the whole building project, then a supervision plan should not be prepared by the RC alone and the AP/RSE should have their contribution.
4. The HKCA considered it a proper requirement proposed under the Bill that technically competent persons should be appointed to supervise the works. Since the training of such competent persons required time, the commencement date of this proposal should take this into account.

8. The HKCA would submit its proposed format of supervision plan for Members’ consideration.

HKCA

IV. Meeting with The Hong Kong Institution of Engineers (HKIE)

9. The submission of the HKIE was at Appendix II to LP No. HB 119/95-96.

10. The representatives of the HKIE stated that its stance on the Bill was similar to that of the HKIA. The representatives supplemented the following points :

1. The HKIE supported the proposed new procedures for registration of AP and RSE and considered it in the right direction that the registration should be taken over by the respective Registration Boards. The HKIE also welcomed the proposed new registration system for contractors which would improve building safety. While fully in support of the objective of the Bill to enhance safety of building works, the HKIE objected to the changes in responsibilities for site supervision.
2. The HKIE did not deny that there was a place for a supervision plan in the construction process but this plan should not be an approved prescribed plan. In its view, a supervision plan should be a flexible document capable of adopting to the continually changing site circumstances. Under the present proposal, the prescribed supervision plan would be excessively rigid and would not accommodate changes in site circumstances.
3. At present the construction industry operated under Forms of Contract which were either of international usage or were based on similar ones of international recognition. To accommodate the proposals in the Bill and the Amendment Regulations, it would be necessary to rewrite the Forms of Contract which would differ significantly from those in use by Government and elsewhere in the world.
4. The industry supported measures to improve both the quality of construction work and in industrial safety. It commended the steps recently taken by the Secretary for Works and Director of Housing to improve safety awareness and to introduce competent site supervisory staff, which had led to marked improvement in quality and safety. The HKIE welcomed the recent consultation document prepared by the Education and Manpower Branch which clearly placed the responsibility for safety with the contractors.
5. HKIE considered that works site safety could only be improved by education and training of the workforce. The proposed criminal sanction on AP/RSE for failure to visit at a frequency set out in the prescribed plan would in no way improve site safety. It would not serve the purpose if an AP/RSE visited the site mechanically to satisfy the numerate requirement. What was important was the action taken by the AP/RSE during such a visit which was not objective and could not be criminalised.
6. The HKIE was of the view that changes should only be proposed after in-depth investigations into the recent collapses had been conducted and review by experts of these cases made.

11. In response to Members’ enquiries, the representatives provided the following comments :

1. The HKIE considered that the design professional and the construction professional were equally important; AP/RSE being the former and RC the latter. To improve liaison and interaction with the design professional, the HKIE agreed that there should be a professional presence within the contractor’s organisation, at least on major construction sites. This would help to translate the design of the AP/RSE into practical construction. The RC should therefore be at a near professional or sub-professional level.
2. The HKIE emphasised that it had no intention of shifting the supervisory responsibilities to the RC but that the roles of the AP/RSE and of the RC were different. The AP/RSE was to ensure the works were done in accordance with the law and with the approved building plans whilst the RC was responsible for the actual carrying out of the works.
3. Most of the accidents occurred in small construction sites where the quality and the management of the RC were not as good as they should be. To improve site safety, formalisation and professionalisation of contractors was a step in the right direction.

V. Brief response from the Administration

12. The Administration’s response to the submissions of the HKIA, the HKIE and the HKCA was tabled at the meeting.

13. In response to the deputations’ representations, Mrs Helen YU made the following brief comments :

1. The Administration disagreed with the HKIA’s view that the Bill was an overkill. The Bill was a package of proposals to enhance safety assurance. It was a reflection of safety needs and community concern.
2. As seen from the representations of the HKCA and the HKIE, there had been a great deal of consensus over a large measure of the package of proposals. The Administration could not understand why the HKIA said that the Government did not understand the construction industry nor its operation. The Buildings Department was a professional department comprising very experienced professionals.
3. The Bill did not impose additional duties. It only attempted to classify different levels and different degrees of responsibilities. The responsibilities already existed under section 4 of the Buildings Ordinance. In regard to supervision, that duty had already been in place since 1955; the only exception was that it had not been criminalised and there had been no sanction. The Administration believed the reason why there had been such opposition to this particular element, not from the HKCA nor the contractors, but from some in the profession was that the Government had, for the first time, waken up to the lack of adequate and effective sanction for that duty. Section 4 required the AP/RSE not just to design but also to coordinate and to supervise in the prescribed manner.
4. The Administration had much consultation with the professionals. The Administration had in fact taken into account the suggestions of the HKCA and the professions that refinements had been made to the Buildings (Amendment) (No. 3) Bill. In the No. 2 Amendment Bill the registration of building contractors was confined to natural persons. The No. 3 Amendment Bill allowed proprietorship, corporations and companies to continue to be registered as building contractors. Upon the request of the industry to clarify the meaning of "adequate and proper supervision" in the No. 2 Amendment Bill, the Administration came up with the concept of a supervision plan which was welcomed by the HKCA and the HKIE.
5. There was no fixed format for a supervision plan. The sample supervision plan annexed to the LegCo Brief was not meant to be a model. In the light of the nature, scale and complexity of the project and the site conditions, the AP/RSE would prepare a supervision plan in consultation with the RC. It was up to the professionals to choose which category or class of supervision they considered appropriate. The Administration would not mind if the professionals preferred to put forward the supervision plan in parts and the AP/RSE only coordinated them. It was not a deliberate attempt to sabotage the sample supervision plan produced by the professionals. To meet the deadline of gazetting the Amendment Bill on 6 October 1995, there was not enough time for the Planning, Environment and Lands Branch to incorporate the sample plans prepared by the professional bodies into the LegCo brief.
6. If laws could be changed, the Administration could not see why contracts could not be changed. The Administration had focused on the implications on contracts.
7. Where it could be changed, the Administration did change; where it could not be compromised, the Administration would not compromise, i.e. over the question of effective sanction for the need to supervise. Sanction was needed not to deter those who were already responsible but those who were not fulfilling their responsibilities. Those who did comply with the requirements should have nothing to worry about.
8. The Administration did take reference from overseas, but Hong Kong situation require a Hong Kong solution. The Administration did not think it appropriate to defer the enactment of the Bill although it recognized that there should be a reasonable grace period for both the professions and the contractors to meet the requirements. Whilst the review of the Ordinance was prompted by the unfortunate incidents last year, the package of proposals as safety assurance was devised on the basis of experience over the years.

VI. Date of next meeting

14. Mr Albert CHAN suggested that a table summarising the amendments to the Bill proposed by the deputations be made to facilitate future discussion.

Clerk

15. The Chairman reminded Members that the next meeting was scheduled for 23 November 1995 (Thur) at 2:30 p.m.

16. The meeting closed at 10:45 a.m.

LegCo Secretariat
19 December 1995