2. Mr LEE Cheuk-yan explained that the object of the Employment (Amendment) Bill (the Members Bill) was to amend the Employment Ordinance (Cap. 57) (the EO) to bring it in line with requirements of the International Labour Convention No. 98 in enhancing employees protection against discrimination on the ground of trade union membership and activities. The Bill allowed employees to bring civil proceedings against their employers for such discrimination and provided for remedies including re-employment and monetary compensation.

3. Members noted that the Members Bill overlapped to some extent with the Employment (Amendment) (No. 2) Bill 1997 (the No. 2 Bill) introduced by the Administration which would resume Second Reading debate at the Sitting of the Legislative Council on 17 June 1997. Mr LEE Cheuk-yan highlighted major differences of the two Bills as follows -

the ambit of the No. 2 Bill was confined to dismissal while the Members Bill dealt with any anti-union discriminatory acts including but not limited to dismissal;
the scope of civil remedies available under both Bills were different. The provisions on civil liabilities in the Members Bill were modelled on the Equal Opportunities (Religious or Political Conviction, Trade Union Activities and Spent Conviction) Bill and were wider than those in the No. 2 Bill;
albeit the provision for re-employment as a remedy in both Bills, the No. 2 Bill stipulated that reinstatement be subject to the consent of both the employer and the employee, whereas under the Members Bill, this decision rested solely with the court. In addition to re-employment, the court might also order promotion of the employee concerned under the Members Bill; and
the No. 2 Bill imposed a ceiling of an award of compensation of $150,000 in a substantiated case of unlawful dismissal, whereas the Members Bill did not provide for the maximum amount of compensation and punitive/exemplary damages to be awarded by the court.

4. Mr LEE Cheuk-yan also briefed members on his proposed amendments to the Members Bill as follows -

to delete the proposed increase in penalties for offences relating to acts of anti-union discrimination so that the Members Bill would focus on civil remedies;
to change all references to District Court as the adjudicating body in the Members Bill to the Labour Tribunal (LT) in view of the Administrations proposal in the No. 2 Bill to designate the LT for handling cases relating to unlawful dismissal; and
to add a transitional provision to clarify that the Members Bill should not apply to detriment suffered by an employee before its commencement.

III. Meeting with the Administration

(LegCo Paper Nos. CB(1)1794/96-97(02) and 1818/96-97)

The Administrations views on the Members Bill

5. The Administration stated its strong opposition to the Members Bill. The Administration explained that it had introduced the No. 2 Bill which, amongst other objectives, sought to strengthen protection of employees against unlawful dismissals including the ground of anti-union discrimination. The Labour Advisory Board (LAB) had discussed the Members Bill but did not support it. The Administration considered that the proposed remedies of the Members Bill, such as re-employment and promotion of the affected employee without the employers consent, would not be conducive to the maintenance of harmonious labour relations. It was inappropriate for the court to interfere with staffing decisions taken by private companies.

6. On the issue of the right of "reinstatement", Mr LEE Cheuk-yan stressed the need to provide for such a remedy. He explained that where a union leader was victimised and dismissed, it would be justifiable to make such an order even at the expense of harmonious labour relations as union activities would otherwise be stifled. In response, the Principal Assistant Secretary for Education and Manpower (PAS/E&M) advised that the LAB had agreed that the issue should be further examined by its Committee on Labour Relations at a later stage.

Clause-by-clause examination of the Members Bill

Proposed section 21D

7. The Assistant Commissioner for Labour (AC/L) explained that the No.2 Bill imposed a limit of 12 months between the exercise by an employee of his rights under section 21B(1) of the EO and the occurrence of a discriminatory act for initiating civil proceedings against an employer as it would be unreasonable to expect an employer to provide information on an alleged discriminatory act which took place long ago. Mr LEE Cheuk-yan noted the Administrations suggestion and would consider imposing such a time limit in the Members Bill.

Proposed section 21E

8. Members noted that whilst the LT was the designated authority to handle claims relating to anti-union discriminatory acts, it might transfer the case to the District Court or the High Court for adjudication where appropriate.

Proposed section 21F

9. Responding to AC/Ls enquiry, Mr LEE Cheuk-yan clarified that the term "status quo" in subclause (a) referred to the situation which existed prior to the detriment suffered by an employee and that a similar provision was enshrined in the Sex Discrimination Ordinance (Cap. 480) and Disability Discrimination Ordinance (Cap. 487). The Assistant Legal Adviser 3 (ALA3) advised that in making an interim order to preserve the "status quo", such as to prohibit dismissal of an employee, the LT would consider urgency of the case and other relevant factors.

Proposed section 21G

10. On the Administrations concern about the absence of a prescribed maximum amount of compensation and punitive damages in subclause (2)(e) and (f), Mr LEE Cheuk-yan said that the court would take into account the loss or damage suffered by the affected employee in determining the amount of compensation and punitive damages to be awarded.

11. On the meaning of subclause (2) (h), Mr LEE Cheuk-yan clarified that it intended to provide for non-application of any laws which were inconsistent with the protection of employees against anti-union discriminatory acts in civil proceedings brought under the proposed section 21D. He would seek further legal advice and consider amending the provision to convey this meaning.

Proposed section 21H

12. Members noted that both the Members Bill and the No. 2 Bill placed the onus of proof on the employer in proceedings. While members had no objection to this principle, they and the Administration considered the present drafting of the proposed section 21H too stringent since it might bind the court in making a verdict that whenever the two stated conditions were satisfied, the employee suffered detriment on account of his union membership status in the absence of evidence to the contrary. These conditions were the exercise of any of the rights relating to union activities vested in an employee under existing section 21B(1) of the EO and the suffering of detriment in his employment. AC/L advised that the No.2 Bill provided for five valid reasons upon which an employer could rely to prove that the employee was not dismissed on ground of his exercising any of the rights vested by section 21B(1) of the EO. The court would consider the circumstances of the case and the evidence provided by the employer before making a judgement. Mr LEE Cheuk-yan explained that the drafting was intended to cover such cases where an employer dismissed an employee on a number of grounds including anti-union discrimination. Nevertheless, he noted members concern and agreed to review the drafting.

13. The ALA3 advised that as both the Members Bill and the No. 2 Bill provided for civil remedies for dismissal on the ground of trade union membership and activities, members might consider specifying non-application of certain provisions in Part VIA of the EO relating to dismissal on the ground of union activities in contravention of section 21B(2)(b). Mr LEE Cheuk-yan noted the advice.

Conclusion

14. Mr Ambrose LAU stated that he did not support the Bill. The Chairman and Mr Michael HO had not indicated their position. In summing up, the Chairman concluded that members of the Bills Committee had different views on the Bill. Mr LEE Cheuk-yan said that he had given notice to resume Second Reading debate on the Bill at the Sitting of the Legislative Council on 23 June 1997. Members agreed that a report on the deliberations of the Bills Committee be submitted to the House Committee for consideration on 13 June 1997. Mr LEE would inform the House Committee of his finalized amendments to the Bill.

15. The meeting ended at 4:15 pm.

Provisional Legislative Council Secretariat
28 August 1997

Last Updated on {{PUBLISH AUTO[[DATE("d mmm, yyyy")]]}}

Bills Committee on Employment (Amendment) Bill 1997

Minutes of Meeting held on Tuesday, 10 June 1997, at 2:30 p.m. in Conference Room B of the Legislative Council Building

I. Election of Chairman

II. Briefing by Hon LEE Cheuk-yan