Members noted that the Administrations answers to questions relating to small house applications raised at the last meeting held on 28 April 1997 was still awaited.

(Post-meeting note : The Administrations answers were subsequently circulated to members vide LegCo Paper No. CB(2)2335/96-97.)

The Chairman recapitulated that in order to facilitate discussion of the Sex and Disability Discrimination (Miscellaneous provisions) Bill 1996, it was agreed at the last meeting that Miss Christine LOH would go over with the Administration its specific concerns on individual clauses of her Bill before the meeting. At the Chairmans request, Miss LOH briefed members on her discussion with the Administration. Taking into account the Administrations comments, she had revised the draft Committee stage amendments (CSAs) to her Bill (Paper No. CB(2)2263/96-97 (01)). After discussion with Miss LOH, the Administration had reinforced its belief that as the Sex Discrimination Ordinance (SDO) and Disability Discrimination Ordinance (DDO) were only fully operational in December 1996, amendments to the two Ordinances should only be considered after development of local operational experience and the comprehensive review of the two Ordinances by the Equal Opportunities Commission (EOC) in December 1997. Besides, the general public was not yet fully familiar with all the provisions of the two Ordinances. It would certainly cause confusion to the public if the Ordinances were amended at this stage, bearing in mind that they might be further amended after the EOCs review. Frequent amendments to the two Ordinances would also cause difficulties to the EOCs work in promoting the Ordinances and some members of the public would mistake the reasons why the EOC had told them different things at different times.

III. Continuation of clause-by-clause examination of the Bill

(Paper No. CB(2)2263/96-97 (01) - revised draft CSAs to the Bill prepared by Miss Christine LOH)

Clauses 4, 5, 6 and 27 - Indirect discrimination

Miss LOH pointed out that the wording of clauses 4, 5, 6 and 27 was copied from the test of indirect discrimination used in Australian legislation. In order to tie in with the wording of the relevant provisions in SDO and DDO which was based on United Kingdom (UK) legislation, she had proposed CSAs to the clauses. Members noted that the test of indirect discrimination now used in the two Ordinances provided that indirect discrimination might arise if a "requirement or condition," although applied equally, had a disproportionate impact on one sex (or on persons with a disability). The impact was assessed by comparing the proportions of men and women (or the proportions of persons with and without a disability) who could comply with the requirement or condition. Indirect discrimination as amended by the CSAs might include -

in addition to conditions and requirements that were indirectly discriminatory, practices of the type as well; and
any practice, condition or requirement that disadvantaged a person because of sex, marital status, pregnancy and disability regardless of whether the person could comply with it.

Representatives of the Administration said that the existing definition of "requirement or condition" was broad enough to include "practice". The Administration therefore did not see the rationale for the inclusion of "practice" in addition to "requirement or condition". The Administration also failed to see the need to replace the words "comply with" in the existing legislation with the word "disadvantage". The Administration was concerned that as a result of the changes to the wording of the relevant clauses the UK case law on indirect discrimination could no longer be relied upon in interpreting the key words of the clauses (e.g. disadvantage referred to in the revised clause 4) which were copied from recent amendments to the Australian law and for which there probably had not been any judicial interpretation.

Representatives of the Administration said that according to the excerpt from the book entitled "Race and Sex Discrimination" (LegCo Paper No. CB(2)2277/96-97), a complainant might have difficulty in identifying the requirement or condition as a result of the court decision in Perera v Civil Service Commission (1983) ICR 428. In this case, the court held that a requirement or condition could only be said to exist when it amounted to a complete bar if not met. This meant that practices which were decisive in a particular situation but which were not absolute bars could not form the basis of a claim. There was insufficient information to unable a decision to be taken on whether or not the courts ruling should be reversed. Or, if the ruling should be reversed, it was not clear whether the clauses proposed by Miss LOH achieved the objective. Miss LOH said that she did not find any problem in the test proposed by her and she believed that the clauses would offer better protection against indirect discrimination.

Clauses 7(b) and (c) and 28 - exceptions for small employers

Miss LOH said that clause 7(b) and (c) and 28 sought to shorten the grace period for small employers, while enabling the Legislative Council (LegCo) to extend either exception for some additional time if necessary. As the specified dates that the Bill set for these purposes had passed and the grace period provided for in SDO and DDO would expire in July and August 1998 respectively, CSAs to delete the two clauses were proposed.

Clause 10

Miss LOH said that clause 10 sought to replace the following three exceptions in Schedule 5 with similar exceptions in the body of SDO. These exceptions authorised -

an employer to refuse double benefits to married employees (e.g. a housing allowance for an employee whose spouse already received a similar allowance);
marital status discrimination in access to reproductive technology (e.g. in vitro fertilisation, artificial insemination); and
marital status discrimination in access to facilities for adoption of children.

In reply to the Chairman, the Administration pointed out that it did not object to the clause as these exceptions were already provided for in SDO.

Clauses 13 and 30 - functions and powers of EOC

Miss LOH said that there was a basic difference of opinion between she and the Administration in respect of the functions and powers of EOC. She considered that EOC should be given express additional powers in order to play a more procactive role in the elimination of discrimination. She therefore proposed clauses 13 and 30 to give EOC express authority to carry out two optional functions -

to promote binding and non-binding international standards as defined in the Bill; and
to examine and report on proposed legislation.

She pointed out that the Privacy Commissioner for Personal Data was also tasked to perform similar functions under the Personal Data (Privacy) Ordinance. Whilst having reservations on promoting non-binding standards by EOC, the Administration took the view that many of these functions could be lawfully performed by EOC under SDO at present. As such, these was no need to list them out.

The Administration was concerned about the following -

According to legal advice, although Miss LOH intended these functions to be optional, EOC might be open to challenge if it did not perform them over a lengthy period;
Promotion of standards not yet applicable to Hong Kong might mislead the public into thinking that these standards applied in Hong Kong. EOCs political neutrality might be open to question if it had to promote these standards; and
Promotion of these standards might also adversely affect EOCs conciliation work. The parties concerned might be misled to consider that EOC would follow these standards in resolving the disputes.

Clauses 14, 15, 32 and 33

Miss LOH agreed to delete these clauses after discussion with the Administration.

Clauses 16 and new 33A - remedies obtainable in civil proceedings

Miss LOH pointed out that clause 16 sought to remove arbitrary limits that SDO imposed on the remedies a court might order for unlawful sex discrimination, and instead bring these remedies in parallel with those available under DDO for disability discrimination.

Cap on damages

Miss LOH said that one of the three major proposals in clause 16 was to repeal the $150,000 limit on damage awards for work-related sex discrimination or harassment, which significantly deterred any litigation in respect of those matters. In this connection, she had revised the CSA to clause 16 and added a new clause 33A in order to make clear that the $120,000 limit ordinarily applicable to civil proceedings in the District Court did not apply to DDO or SDO proceedings.

Reinstatement

Miss LOH said that another major proposal in clause 16 was to empower the court to order an employer to reinstate a terminated employee if the court judged this to be the just and appropriate remedy in the circumstances.

The Administration stated that it did not agree to the provisions on reinstatement and others under clause 16 of Miss LOHs Bill. Under the Administrations Employment (Amendment) (No. 2) Bill 1997 which was being considered by LegCo, a reinstatement or re-engagement order was provided as one of the remedies for unreasonable termination of employment, unreasonable variation of contract and unlawful dismissals. However, unlike the provision under Miss LOHs Bill, this reinstatement order might be made only if it was agreed by both the employer and employee involved. The Administrations Bill also provided that where the employer failed to comply with the order by the court, the employee would be entitled to an award of terminal payments. These provisions which struck a reasonable balance between the interests of employers and employees were more appropriate then those under Miss LOHs Bill. Mutual consent was necessary to maintain good labour relations.

The Employment (Amendment) No.2 Bill 1997 proposed that the employee concerned would be compensated if an order for reinstatement had not been made or complied with. In reply to Miss Christine LOH, the Administration pointed out that as sex and disability discrimination in employment field were dealt with in SDO and DDO respectively, unlawful dismissals on these grounds fell outside the scope of the Employment (Amendment) No.2 Bill 1997.

A member said that court order for reinstatement was already provided for in DDO. Mutual consent was, however, not a pre-requisite for the order. He was therefore concerned about the inconsistency between DDO and the Employment (Amendment) No. 2 Bill 1997 in this respect. The Administration pointed out that the provision on reinstatement in DDO was put forward by a Member in the form of a CSA to the Disability Discrimination Bill (DDB). Such a provision probably took account of the difficulty which a disabled person might have in finding an alternative employment. The Attorney Generals Chambers advised that the court was generally obliged, as a matter of common law principle, to take into account circumstances of the case including the need to maintain good labour relations in deciding whether to make an order for reinstatement. Normally, it would not make the order under common law without the employers and employees consent. Another member opined that in view of this common law principle, it was unnecessary to incorporate the mutual consent requirement in the provisions on reinstatement in the Employment (Amendment) No. 2 Bill 1997 and Miss LOHs Bill. In reply to the Chairman, the Administration pointed out that no proceedings in respect of reinstatement under DDO had been instituted since its enactment in August 1995.

Mrs Miriam LAU recalled that the Liberal Party did not support the CSA to DDB in respect of reinstatement when it was put to LegCo in 1995. Reinstatement without mutual consent between employers and employees was not practical. She shared the Administrations view that mutual consent was necessary for maintaining good labour relations. This was particularly important in respect of small employers who, unlike large employers, could not transfer the reinstated employee to a different working environment. Other members said that if there was mutual consent, it was unnecessary for legislation on reinstatement. The proposal was to protect the employee by authorising the court to rule in case of disagreement. On the question of whether there was any existing labour legislation whose scope was confined to employers of varying sizes, the Administration responded that most of the existing labour legislation did not contain provisions excluding from its coverage certain groups of employers on the basis of their employment size. A member said that SDO and DDO provided a three-year grace period for small employers having five or less employees. The Mandatory Provident Fund Ordinance did not apply to employers of domestic workers.

Damages for unintentional sex discrimination

Miss LOH said that the third major proposal of clause 16 was to remove the bar against damages in cases where indirect sex discrimination was unintentional, giving the court the same discretion to award damages as in other types of cases.

Representatives of the Administration briefed members on the updated position of the UK law. Only under certain conditions did the UK law allow damages to be awarded even in cases where indirect sex discrimination was unintentional. The Administration would revert to the Bills Committee on details of the updated position.

Admin

Clauses 17 and 34 - Binding undertakings

Miss LOH said that clause 17 added a new section that enabled persons to make, and EOC to accept, binding undertakings not to act unlawfully under SDO. A binding undertaking might be made voluntarily by a person at any time, might cover any of the same matters as an enforcement notice issued by EOC, and might be enforced by EOC in the same way. Clause 34 sought to make a parallel amendment to DDO.

The Administration pointed out that binding undertakings was a UK EOC recommendation. The UK Government undertook to discuss further with UK EOC on this subject in 1993. However, no revision on this subject had been made to the UK law so far. The Administration would check the latest position with the UK Government.

Admin

Clauses 18 and 35

Miss LOH said that clauses 18 and 35 as amended by the revised draft CSAs concerned made the following two proposals -

They sought to enable EOC to bring proceedings in its own name in claims under SDO and DDO. In this connection, the Administration pointed out that the EOCs power to litigate under SDO was governed by the regulations made by the Secretary for Home Affairs at present.
They sought to enable EOC to bring any judicial review proceedings that were relevant to its functions. The Administration pointed out that, according to the Attorney Generals Chambers advice, EOC was able to bring judicial review proceedings under the two Ordinances. It was therefore unnecessary to add this power to EOC. ALA4 advised that the proposed EOCs power to bring proceedings in its own name might adversely affect its current implicit power to bring judicial review proceedings. The clauses sought to give EOC the power explicitly. In fact UK EOC had such a statutory power to bring judicial review proceedings.

The Chairman said that the clauses would be further discussed at the next meeting.

Clauses 20 and 37 - period within which proceedings to be brought

Miss LOH said that clauses 20 and 37 sought to ensure that any time during which EOC attempted to conciliate a persons complaint did not count against the time limit for the person to bring court proceedings on the complaint. The Administration pointed out that SDO and DDO allowed the court to consider any claim or application which was out of time if, in all the circumstances, the court considered that it was just and equitable to do so.

Clause 21

Miss LOH said that clause 21 sought to repeal section 89 of SDO which, as a consequence of clause 18, no longer served any purpose. Members agreed that the clause would be considered at the next meeting together with clause 18.

Clause 26

Members noted that clauses 3 and 26 had the same wording and sought to amend section 2 of SDO and DDO respectively.

Clause 31

Miss LOH said that clause 31 sought to repeal references to a Schedule that was repealed by clause 40. As she had put forward CSA to repeal clause 40, removal of the references was no longer necessary. She would therefore propose CSA to delete clause 31.

Mrs Miriam LAU said that the Liberal Party took the view that any changes to SDO and DDO should be considered after development of local experience in implementing the two Ordinances and a comprehensive review of them by EOC in December 1997. Moreover, the Bills proposal to give EOC additional functions and powers was not supported by EOC itself. The Liberal Party therefore did not support the Bill.

IV. Date of next meeting

Members agreed to discuss the following at the next meeting to be held on 19 May 1997 at 8:30 am in the Chamber of the Legislative Council Building -

the outstanding points on Miss LOHs Bill (clauses 16, 17, 18 and 21); and
clause-by-clause examination of the Equal Opportunities (Family Responsibility, Sexuality and Age) Bill.

The meeting ended at 10:00 am.

LegCo Secretariat
10 June 1997

Last Updated on 16 December 1998

Bills Committee on the Equal Opportunities (Family Responsibility, Sexuality & Age) Bill, Equal Opportunities (Race) Bill, Sex and Disability Discrimination (Miscellaneous Provisions) Bill 1996 and Family Status Discrimination Bill

Minutes of the 8th meeting held on Thursday, 15 May 1997 at 8:30 am in the Chamber of the Legislative Council Building

I. Confirmation of minutes of meeting held on 1 April 1997

II. Matters arising from the last meeting held on 28 April 1997