LegCo Paper No. CB(1)61/96-97
(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 Thursday, 27 June 1996 at 8:30 a.m.
in Conference Room A of the Legislative Council Building

Members Present :

    Hon Ronald ARCULLI, OBE, JP (Deputy Chairman)
    Hon CHAN Yuen-han
    Hon Lawrence YUM Sin-ling

Members Absent :

    Hon Edward HO Sing-tin, OBE, JP (Chairman)
    Dr Hon Edward LEONG Che-hung, OBE, JP
    Hon LEE Cheuk-yan

Public Officers Attending :

Mr Herman CHO
Principal Assistant Secretary for
Education and Manpower
Mr MAK Sai-yiu, JP
Assistant Commissioner for Labour

Attendance by Invitation :

The Real Estate Developers Association of Hong Kong
Mr S Y WAI
Secretary General

The Hong Kong Construction Association Ltd
Mr Jimmy TSE
Vice President
Mr Patrick W T CHAN
Secretary General

Hong Kong Construction Industry Employees
General Union
Miss WONG Chi-mei
Representative

Construction Industry Safety-Management Association
Mr TJHIN Yuet-hung, Jacky
Chairman

Clerk in Attendance :

Miss Polly YEUNG
CAS(1)3

Staff in Attendance :

Mr LEE Yu-sung
ALA1
Ms Connie SZE-TO
SAS(1)5

Meeting with the Administration and deputations

(A list of main issues discussed at the last meeting of the Bills Committee on 25 June 1996 prepared by the Secretariat and statistics on industrial accidents in construction industry for 1991 to 1995 provided by the Labour Department were tabled at the meeting and attached at annex.)

The Bills Committee continued scrutiny of the Factories and Industrial Undertakings (Amendment) Bill (the Bill). Members’ deliberations were summarised in the following paragraphs.

Proposed system to issue improvement notices and suspension notices

2. Members and deputations expressed concern about the possible time lapse between discovery of the work hazard and the issue of suspension notice (SN) since under the draft guidelines prepared by the Labour Department (LD), a period of two working days was allowed for the issue of SN. They further proposed a two-tier approach where on discovery of a dangerous work situation, the visiting Factory Inspector (FI) would verbally advise the proprietor and serve on him an improvement notice (IN) on the spot. If no satisfactory improvement was effected within the specified period, a SN would be issued. Under this approach, it was anticipated that a proprietor would have no alternative but to suspend work on his own accord if he could not make timely improvement. In this connection, Hon YUM Sin-ling expressed doubt on whether the verbal notification by the visiting FI would suffice and suggested that a statutory notice should be issued to the proprietor on the spot specifying the circumstances which required improvement and stating the intention to issue a SN in due course.

3. In response to the concerns raised, Mr S Y MAK advised as follows :

  1. The LD’s internal guideline was that a SN should be issued not later than 48 hours after discovery of the work hazard. This was only the maximum time-frame within which a SN must be issued. The LD would undertake to issue a SN as early as possible.
  2. As the suspension of work was a serious matter, the Administration had considered that the decision to issue a SN should be approved by a Deputy Chief Factory Inspector instead of by the visiting inspector who was a more junior officer. Moreover, this arrangement could help to prevent frontline staff from being offered bribes.
  3. Operational experience had indicated that over 80% of the proprietors would comply with the verbal advice given by the FI during inspection visits. In the relatively small number of serious cases with imminent risks, the immediate issue of SN was warranted. If, by the time the SN had been approved, it was found that the hazards had been removed or rectified, the SN would not be served on the proprietor.
  1. The Administration would consider the member’s suggestion to replace the verbal advice given by the FI on the spot by a written notice.
LD

4. Representatives of the construction industry reiterated their concerns and undertook to draw up a detailed proposal for the Committee’s consideration before its next meeting on 1 July 1996.

REDA/
HKCA

Other concerns

5. Members and representatives also raised the following concerns in connection with the Bill :

  1. The Bill was not clear on whether the proprietor, who had been issued with a SN/IN, would still be prosecuted for breaches of the respective safety provisions.
  2. No appeal mechanism was proposed for the issue of IN.
  3. The time-frame for discharging a SN was not clearly stipulated in the LD’s guidelines.
  4. In case of intervening holidays, LD should make special staffing arrangements to ensure prompt inspection to check compliance and the discharge of SN without delay upon rectification.
  5. To ensure timely receipt of a SN and notification of its discharge, the notice and relevant documents should be delivered to both the registered office and work site of the proprietor.

In addition, the representatives of the construction industry also urged for the preparation of a technical memorandum (TM) to set out the criteria and procedure for the issue and enforcement of SN and IN instead of relying on the promulgation of internal guidelines which had no statutory effect.

6. In response, Mr MAK made the following points :

  1. If an IN had been complied with, it was unlikely that the LD would take out prosecution in respect of the breaches stated therein. However, prosecution might still be taken out on persistent breaches and on serious cases involving SN.
  2. The Administration would not propose to provide for appeal against the issue of an IN since a proprietor who believed that he was not contravening or had not contravened a safety provision was at liberty to ignore the notice and raise the issue in court should he be prosecuted for failing to comply with the notice.
  3. Rescission of the SN would be processed as soon as possible and the LD would endeavour to inform the proprietor of its discharge within one working day. The LD would also consider the necessary staffing arrangements to ensure the timely issue and discharge of SN.
  4. The circumstances requiring the issue of SN and IN had been prescribed in the draft guidelines prepared by the LD. A TM would not be appropriate for this purpose and it would also entail the preparation of subsidiary legislation which might delay the passage of the Bill.

Clause-by-clause examination

7. Members made the following suggestions on various clauses of the Bill:

Clause 2

  1. To include in the proposed section 9C(4) the procedure for the Commissioner for Labour to consult an advisory panel when the former received an application for review.
  2. The proposed section 9C(6) stipulated that a SN would take effect on the date when the proprietor "has received" such notice. In line with the advice of ALA1, it would be more appropriate to amend the provision to the effect that the SN would take effect when it "has been served on the proprietor" as it was easier to prove service than to prove receipt of notice on the part of the proprietor. This concept was also consistent with proposed section 9D on the "service of notices".

Clause 3

  1. Failure to comply with an IN "without reasonable excuse" was a prosecutable offence under the proposed section 10(8). However, under the proposed section 10(9), failure to comply with a SN was a strict-liability offence as the proof of guilty intention was not required. The difference in the standard of proof should be re-examined.
  2. If a TM was to be included in the Ordinance, the amendment ordinance should not commence until the TM had been prepared. Pending availability of the TM, the existing section 11 of the Ordinance should remain in force.

The Administration agreed to consider the suggestions and respond shortly.

EMB/LD

8. The meeting ended at 10:30 a.m.

LegCo Secretariat
4 October 1996

Last Updated on 11 December 1998