PLC Paper No. CB(1)124
(These minutes have been seen by the Administration and cleared with Chairman)
Ref : CB1/BC/41/95/2

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

Minutes of Meeting
held on Tuesday, 27 May 1997, at 4:30 p.m.
in Room B of the Legislative Council Building

Members present :

    Hon Mrs Miriam LAU Kin-yee, OBE, JP (Chairman)
    Hon LEE Cheuk-yan
    Hon CHAN Yuen-han
    Hon LEE Kai-ming
    Hon Bruce LIU Sing-lee

Members absent :

    Hon Michael HO Mun-ka
    Hon Henry TANG Ying-yen, JP
    Hon James TIEN Pei-chun, OBE, JP
    Hon Paul CHENG Ming-fun, JP
    Hon LEUNG Yiu-chung

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 Clement LUK
Senior Crown Counsel
Attorney General’s Chambers
Miss Marie SIU
Senior Crown Counsel
Attorney General’s Chambers

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)1655/96-97)

The minutes of the meeting held on 29 April 1997 were confirmed.

II. Meeting with the Administration

(LegCo Paper No. CB(1)1683/96-97, 1685/96-97 and the Administration’s proposed Committee stage amendments tabled at the meeting and subsequently issued vide LegCo Paper No. CB(1)1717/96-97)

The Chairman said that the meeting would continue with the clause-by-clause examination of the Employment (Amendment) Bill 1996 and the Employment (Amendment) (No.2) Bill 1996.

Employment (Amendment) Bill 1996

Section added

(Clause 8)

Referring to the Administration’s proposed Committee stage amendment (CSA) to clause 8 seeking to address members’ concerns about the need for the proposed section 15AA(1) the legislative intent of which could already be achieved by the proposed section 15AA(3), Consultant (Legal Service) (Cons(LS)) advised that the proposed CSA would serve to remove the possibility of creating an unintended criminal offence. Nevertheless, he pointed out that there might still be practical difficulties for employers to comply with the statutory requirement stipulated in the proposed section 15AA(3) and enquired whether the type of work which the employee should not perform would be specified in a medical certificate in very clear terms for employers’ reference.

In response, the Assistant Commissioner for Labour (AC for L) reiterated the safeguards under the proposed three-tier mechanism 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 (C for L) in the case of conflicting medical opinions over the fitness or otherwise of the employee in performing certain types of work. The Chairman however expressed reservation on the proposed arrangements as there was no statutory obligation for the C for L to seek further medical opinion in making a determination. The Administration explained that in practice, the C for L would enlist the professional assistance of the Occupational Health Consultant seconded from the Department of Health and similar arrangements were already in place for handling cases on long service payment. After deliberations, the Administration agreed to introduce a CSA to the proposed section 15AA(b) to the effect that the C for L would be required to seek further medical advice in determining cases of conflicting medical opinions.

Offences

(Clause 9)

In reply to some members’ enquiry about the need for criminal sanction on employers who required the pregnant employee to handle heavy, hazardous or harmful work, the Administration held the view that the proposed penalty was necessary for achieving a deterrent effect. AC for L added that the offence in question was not one of strict liability and while most members supported criminal sanction, a few members had reservations as they considered the provision too draconian for employers.

Issue related to domestic helpers

The Committee noted the strong objections of the Hong Kong Employers of Overseas Domestic Helpers Association (HKEODHA) to the Employment (Amendment) Bill 1996 but most members were firmly against the suggestion of excluding domestic helpers or other employees from statutory coverage. Some members however stressed the need to examine the implications of the Bill on all affected parties. Members in general concurred that as some three decades had passed since the enactment of the Employment Ordinance, the applicability of the Ordinance should be carefully reviewed in the light of changes in employment practices. As a related policy issue and at members’ request, the Administration agreed to conduct a review on employment conditions of live-in domestic helpers and to inform the Bills Committee in writing of its timetable for review. The Administration would also address this point in the Second Reading debate of the Bill.

Employment (Amendment) (No. 2) Bill 1996.

Interpretation

(Clause 3)

Members noted the Administration’s clarification on the definition of wages contained in its letter dated 28 April 1997.

Section added

(Clause 5)

Referring to the proposed section 10A on deemed termination of contract, AC for L clarified that where an employee had been owed wages for more than one month, he might deem his employment contract to have been terminated by his employer without notice or payment in lieu of notice and he would be entitled to claim all relevant terminal payments. AC for L said that the proposed one-month period had been endorsed by the LAB after extensive negotiation and the Administration would not support some members’ suggestion to lower the triggering period to 14 days as this would easily expose employers with genuine occasional cashflow problems to claims of constructive dismissal.

Some members were concerned that employees’ right under the common law to deem a contract terminated and seek remedies might be subrogated under the proposed section 10A. They also drew the Administration’s attention to possible abuse by unscrupulous employers taking advantage of the one-month period to consistently delay payment of wages to employees.

On some members’ suggestion of introducing a CSA to the effect that the proposed section 10A(1) would apply without prejudice to the rights of an employee under the common law, the Chairman commented that this might have the adverse effect of removing certainty from the statutory definition of constructive dismissal, thus defeating the legislative intent of the proposed section 10A(1). In this connection, Cons(LS) advised that explicit and implicit reference to the common law was found in various provisions of the Employment Ordinance and that subject to the Committee’s view, it would be in order to include the proposed reference to the common law by way of a CSA for the avoidance of doubts. After deliberations, the Administration agreed to preserve an employee’s rights under common law in the proposed section 10A(1) by introducing a further CSA.

Section added

(Clause 7)

Referring to the proposed section 11AA, the Administration confirmed that the presumption proposed under clause 7 on annual payment or annual bonus was only applicable to employment contracts entered into after commencement of the bill, if enacted. The Chairman recalled that the Law Society of Hong Kong had disagreed with the proposed presumption for fear of unfairly increasing an employer’s burden of proof and resulting in explicit stipulation in future contracts of employment that the end of year payment was gratuitous. Members raised no comment and noted that the proposed section 11AA was supported by the LAB.

III. Any other business

Members considered that scrutiny of both Bills was completed and agreed that the Bills should resume Second Reading debate at the LegCo Sitting on 17 June 1997. The Administration was reminded to give the requisite notice by 31 May 1997.

There being no other business, the meeting ended at 6:05 pm.

Provisional Legislative Council Secretariat
8 August 1997

Last Updated on 27 October 1997