LegCo Paper No. CB(1)1800/96-97
(These minutes have been seen
by the Administration)
Ref : CB1/BC/41/95/2

Bills Committee on Employment (Amendment) Bill and Employment (Amendment) (No.2) Bill 1996

Minutes of Meeting held on Thursday, 15 May 1997, at 2:30 p.m. in Room B of the Legislative Council Building

Members present :

    Hon Mrs Miriam LAU Kin-yee, OBE, JP (Chairman)
    Hon Michael HO Mun-ka
    Hon Henry TANG Ying-yen, JP
    Hon James TIEN Pei-chun, OBE, JP
    Hon LEE Cheuk-yan
    Hon CHAN Yuen-han
    Hon Paul CHENG Ming-fun
    Hon LEE Kai-ming
    Hon LEUNG Yiu-chung

Member absent :

    Hon Bruce LIU Sing-lee

Public officers attending :

    Ms Esther LEUNG
    Principal Assistant Secretary for
    Education and Manpower

    Mr TSANG Kin-woo
    Assistant Commissioner for Labour

    Mr Peter WONG
    Senior Crown Counsel
    Attorney General’s Chambers
    (Human Rights Unit)

    Mr Federick CHUNG
    Crown Counsel
    Attorney General’s Chambers

    Dr LEUNG Lai-man
    Occupational Health Consultant

Clerk in attendance :

    Miss Polly YEUNG
    Chief Assistant Secretary (1)3

Staff in attendance :
    Mr Jonathan DAW
    Consultant (Legal Service)

    Mrs Queenie YU
    Senior Assistant Secretary (1)8

I.Confirmation of minutes of meeting

(LegCo Paper No. CB(1)1483/96-97)

The minutes of the meeting held on 14 April 1997 were confirmed.

II.Meeting with the Administration

(The Administration’s written responses tabled at the meeting and subsequently issued vide LegCo Paper No. CB(1)1609/96-97(01) and (02))

2.The Chairman referred to the Administration’s written responses to a number of practical and legal issues raised at the last meeting and said that members would appreciate if the written reply from the Administration could be made available well in advance of the meeting for timely perusal.

3.The Principal Assistant Secretary for Education and Manpower (PAS for E&M) outlined the salient points of the Administration’s paper seeking to address the major concerns raised in the representation of the Hong Kong Employers of Overseas Domestic Helpers Association (HKEODHA).

Exclusion of FDHs from general provisions on maternity protection

4.On the question of whether FDHs could be excluded from the Bill, the Senior Crown Counsel (SCC) advised that the crucial issue was whether such an exemption would be in breach of the principle of non-discrimination under Article 26 of the International Covenant on Civil and Political Rights (ICCPR). He clarified that not every differentiation of treatment would constitute discrimination if the criteria for such differentiation were reasonable and objective. Having considered the hardships identified by the HKEODHA in the light of these criteria and the principle that the burden of proof was on the party seeking the exemption, the Administration did not find the hardships unique or insurmountable in justifying a modification of the general provisions relating to employees’ maternity rights.

5.The Assistant Commissioner for Labour (AC for L) confirmed that since its enactment in 1968, the Employment Ordinance (EO) had applied with few exceptions to all employees including domestic helpers, both local and foreign. While some members were firmly opposed to the suggestion of excluding FDHs from the Bill, some members stressed the need to examine the concerns raised by employers of FDHs. Members shared the view that since some 30 years had passed since enactment of the EO, the Administration should critically review the applicability of the Ordinance in the light of changes in employment practices. A member suggested that the special feature of accommodation for FDHs should be included in such a review.

6.The Chairman referred to the HKEODHA’s representation which stated that private households in UK were exempted from race or sex discrimination legislation. In response, SCC pointed out that the situation was different because there was no domestic bill of rights legislation in UK. In this connection, the Chairman pointed out that the HKEODHA had also referred to the US, Taiwan and Singapore where there was exemption and certain flexibility in the provision of maternity benefits. The Administration was requested to confirm or supplement as appropriate and provide more information on the legislative provisions in these countries. EMB/LD

Prohibition of hazardous work

7.The Occupational Health Consultant (OHC) briefed members on the "guidelines for continuation of various levels of work during pregnancy". He advised that during normal pregnancy, pregnant mothers were able to continue working until the last week of pregnancy, subject at times to certain slight modifications in the work procedures.

8.The Chairman remarked that employers whose children had to be looked after by domestic helpers would still face practical difficulties in following the recommended guidelines. In response, OHC emphasised that normally a domestic helper would not need to lift a child repetitively. Hence, in accordance with the guidelines, a helper could more or less lift a child until term pregnancy. Some members had reservations over the practicability of the guidelines.

9.Responding to questions about the basis on which the guidelines had been drawn up and their acceptability, OHC informed members that the guidelines were issued by the American Medical Association (AMA) in the 1980s and it was the normal practice of the Labour Department (LD) to make reference to internationally recognised guidelines. AC for L clarified that so far, the guidelines had not been widely circulated to employers and employees. Nevertheless, upon enactment of the Bill, the LD would issue appropriate guidelines for reference by both employers and employees.

10.As regards statistics on child birth by FDHs, AC for L confirmed that such statistics were not available. Nevertheless, he referred to statistics cited at the last meeting and advised that employment problems related to pregnancy of FDHs were not serious.

11.The Chairman referred members to the Hong Kong Law Society’s concerns about the criteria for heavy work or work injurious to pregnancy. In this connection, AC for L assured members that the proposed three-tier approach involving the recommendations of the attending doctor of the employee, the second opinion of the doctor appointed by the employer, as well as the ruling by the Commissioner for Labour in the case of conflicting medical opinions should provide adequate safeguards.

Replacement for pregnant FDHs

12.Commenting on employers’ responsibility of looking after pregnant FDHs residing with them, SCC advised that the employer was under a contractual obligation to provide free medical treatment to the helper while she was incapacitated. The employer, however, had no legal obligation to take care of his/her helper although he/she might feel morally obliged to do so.

13.On the availability of replacement for pregnant FDHs, AC for L said that temporary or part-time local domestic helpers were available in Hong Kong and employers might avail themselves of the service of the Local Employment Service of the LD or private employment agencies. According to statistics of the LD, the number of successfully placed domestic helpers were 815 in 1994, 809 in 1995, 1,213 in 1996 and 267 in the first quarter of 1997.

14.Some members envisaged no difficulty in finding replacements for clerical or secretarial jobs but doubted the availability of temporary domestic helpers. The obligation for employers to provide accommodation for live-in helpers would increase the difficulty in finding a replacement for their pregnant FDH. In response, AC for L said that if employers were prepared to offer competitive wages, they should be able to recruit job-seekers willing to take up temporary employment as domestic helpers. The supply of local domestic helpers had been boosted by new immigrants from China and persons who had attended re-training courses for domestic assistants. He also pointed out that in recruiting a FDH, the employer was fully aware of his obligation to comply with the provisions of the EO.

15.As regards the accommodation problem raised by some members, the Administration estimated that only a small number of local domestic helpers serving as relief helpers would require accommodation. AC for L also informed that in exceptional circumstances, the Immigration Department might approve an application for an employer to provide accommodation to a FDH outside his residence. Nevertheless, the Chairman cautioned that unless it was possible to find a replacement for the unfit helper within 14 days, employers would still have the practical difficulty in complying with the statutory requirement if the Bill was passed.

Doctrine of frustration in relation to contract termination

16.Responding to concerns about employers’ predicament of being compelled to retain a pregnant FDH although she might not be able to perform her duties, SCC advised that where circumstances so warranted, an employer could rely on the common law doctrine of frustration to put an end to the employment contract. He further explained that incapability because of severe ill health (whether arising from pregnancy or not) might frustrate the contract of employment and where a contract was frustrated, it would be terminated automatically by the operation of law without the need for any action by the employer or employee.

17.Replying to members’ questions about the precedence of the doctrine of frustration and its relevancy in the case of FDHs, SCC confirmed that this legal principle in the context of employment contract had so far not been tested in local courts. The Consultant (Legal Service) Cons(LS) supplemented that the circumstances amounting to incapability because of severe ill health were not precisely defined and had to be considered on the facts of each case. He advised that although in theory this common law doctrine could offer a solution, nevertheless its application to live-in domestic helper cases had yet to be tested.

18.The Administration briefed members on the proposed Committee stage amendment (CSA) to clause 7(2) of the Bill which would permit dismissal of a pregnant FDH during probation for reasons other than pregnancy. PAS for E&M added that according to legal advice, clause 7 of the Amendment Bill would deprive employers of their existing right under section 6(3) and 6(3A) of the EO to dismiss employees whilst on probation and the proposed CSA sought to rectify this anomaly. Responding to the Chairman’s comments that it would be difficult evidence-wise for the employer to prove that the dismissal was for cause, PAS for E&M and SCC said that it was impractical to specify all possible scenarios as the facts of each case had to be examined.

International Labour Convention (ILC) No.3

19.Cons (LS) referred to the provisions of ILC No.3 and enquired on the application of the Convention to domestic households outside the general employment situations as defined under its Articles 1 and 3. The Administration clarified that in reviewing the provisions on maternity protection in Hong Kong, consideration had been given to the principles and spirit enshrined in ILC No.3 but there was no intention to incorporate the provisions of the Convention into domestic laws.

Clause-by-Clause examination of the Bill

20.Members proceeded to the clause-by-clause examination of the Bill and raised the following concerns:-

Maternity leave(clause 3)

21.Cons(LS) would follow up on the drafting approach under sub-clauses (1) and (2) with the Administration.Cons(LS)

22.Referring to the proposed section 12(4), Cons(LS) commented that there was no provision on the timing for a pregnant employee to serve the requisite notice on her employer and this would mean that a pregnant employee could give her employer a very short notice. Members and the Administration considered that in practice, a pregnant employee would inform her employer of her pregnancy at an early stage in order to be protected from dismissal and to seek her employer’s consent on how she would take her 10-week maternity leave. In this connection, Members also accepted that presentation of a medical certificate to the employer would suffice as the requisite notice.

Prohibition against termination of Employment (clause 7)

23.The Administration confirmed that clause 7(2) would be substituted by the proposed CSA tabled at the meeting.

Section added (clause 8)

24.As there was no penalty for breach of the proposed section 15AA(1), the Chairman requested the Administration to advise in writing on the need for the section as it appeared that the legislative intent of protecting pregnant employees and sanctioning employers could be achieved by the proposed section 15AA(3). If the Administration decided to retain the proposed section 15AA(1), the Chairman stressed that terms like "heavy" and "injurious" mentioned therein would have to be more clearly defined. EMB and
Attorney
General’s
Chamber

Offences (clause 9)

25.On the question of whether criminal sanction should be imposed for breach of the proposed section 15AA(3) or 15AA(7), Miss CHAN Yuen-han, Mr LEE Kai-ming and the Administration considered that criminal sanction was necessary for achieving a deterrent effect. AC for L also assured members that the offence in question was not one of strict liability and a high standard of proof was therefore required on the part of the prosecution.

III.Any other business

26.Members agreed that the next meeting would be held on 27 May 1997 at 4:30 pm.

27.The meeting ended at 4:30 pm.

Legislative Council Secretariat

11 June 1997

Last Updated on 11 December 1998