Consultative document on "Practical Guidelines for Employers - Eliminating Age Discrimination in Employment";
Briefing on Immigration (Amendment) (No. 2) Bill 1997 (Members Bill proposed by Miss CHAN Yuen-han); and
Review on the Occupational Deafness Compensation Scheme.

III Information papers issued since last meeting

(LegCo Paper No. CB(1) 1019/96-97)

3. The Panel noted LegCo Paper No. CB(1) 1019/96-97 which re-circulated an extract from the minutes of the Finance Committee meeting held on 14 February 1997 on the subject of the New Technology Training Scheme.

IV Implementation of the Supplementary Labour Scheme

(LegCo Paper No. CB(1) 1070/96-97(01))

4. The Deputy Secretary for Education and Manpower (DS for E&M) presented the Administrations paper and members raised concerns on the following issues.

Vetting of applications

5. Members said that the Labour Advisory Board (LAB) should stop vetting applications for importing labour under the Supplementary Labour Scheme (SLS) when the number of approved entry visas reached 2,000. Mr LEE Kai-ming recalled that when the SLS was first proposed, the Administration had set a figure of 5,000 which was later reduced to 2,000 due to opposition from the labour sector. He and some members expected that no more workers would be admitted under the SLS when the number of approved entry visas reached 2,000.

6. In response, DS for E&M stated categorically that the figure of 2,000 was not a ceiling but the trigger point for review and that when the review was being conducted, applications would continue to be processed. He disagreed with some members remarks that the Administration had misled them into believing that 2,000 would be the ceiling for the SLS. Referring members to the documents and pamphlets introducing the scheme as well as speeches by the Secretary for Education & Manpower (SEM) at LegCo, DS for E&M said that there had been no indication from the outset that the figure of 2,000 would operate as a ceiling for the SLS.

7. In reply to members question on the LABs processing of applications, DS for E&M advised that:

although the LAB had supported 509 applications for importing 2,733 workers since the inception of the scheme in February 1996, the actual number of entry visas granted was only 781. There was a time lag between application for imported workers was approved and the relevant visas were approved as employers would need time to recruit the workers; and
LAB had a clearly defined and well established vetting mechanism with high transparency, and each application was considered on its merits. The LAB had all along adhered to two important principles: that priority in employment must be given to local workers and that employers needs for imported labour must be realistic and justified.

The review

8. Some members remained skeptical about the review to be conducted. Mr LEE Cheuk-yan warned that chaos might result if employers could continue to submit applications to import labour while the review was in progress. Mr LEUNG Yiu-chung asked if the review could be advanced.

9. DS for E&M clarified as follows:

the review would not take long and was expected to be completed in six weeks or less;
it would be a comprehensive review and would address inter alia members concerns about the impact of the scheme on the employment opportunities of local workers, as well as its effect, if any, on wage trends; and
the Administration would abide by its undertaking to review the SLS when 2,000 entry visas were granted. On the basis of the current pace of processing and approving applications, it was estimated that the figure of 2,000 would be reached in a few months and the review would commence there and then.

Other concerns

10. The Chairman considered that the present process of scrutinising and approving visa applications was satisfactory. Nevertheless, he wished to discuss with the LAB on whether there should be a temporary halt on processing applications since pressure was mounting. At his request, the Administration

agreed to provide information on the time lag between endorsement by the LAB and the subsequent visa approval by the Immigration Department in respect of the 781 visas granted since the inception of the SLS up to 28 February 1997, or a more updated figure, if available.

(Post-meeting note: Pursuant to the Chairmans advice, the Administration has also been requested to provide information on the job types, positions and wages in respect of the visas approved.)

V Briefing on legislative proposals by the Administration :

- Labour Relations (Amendment) Bill 1997

- Trade Unions (Amendment) (No. 2) Bill 1997

- Employment (Amendment) (No. 2) Bill 1997

(LegCo Brief ref EMBCR 6/3051/81 V )

11. DS for E&M introduced salient provisions of the three Bills which formed a legislative package to improve the labour relations system in Hong Kong and statutory protection for employees. He added that many of the proposed provisions sought to give effect to the results of the review conducted by the Administration following the Cathay Pacific Airways strike in 1993. Mr CHAN Wing-chan welcomed the three Bills as a step forward in improving employment protection, particularly the Employment (Amendment) (No. 2) Bill 1997 which would help to reduce unscrupulous manoeuvring by employers.

Labour Relations (Amendment) Bill 1997

12. Members noted that under the proposed amendments, the Commissioner for Labour (C for L) would have greater flexibility in submitting a report on a trade dispute to the Governor in Council and in referring a trade dispute to mediation. Mr. LEE Kai-ming however pointed out that the Administrations proposal had not included employees right to strike whereas this right was provided for in the Basic Law. The Assistant Commissioner for Labour (Labour Relations) (AC for L) (LR) explained that such a provision had not been included due to objection from trade unions and employee representatives at the LAB to the proposed requirement to give prior notice to the employer of the intention to strike. Mr LEE clarified in response, that the employees objection was only on the requisite notice of seven days. The Chairman requested the Administration to further consider Mr LEEs view.

EMB

Employment (Amendment) (No. 2) Bill 1997

13;. DS for E&M took the opportunity to clarify that the qualifying service for long service payment (LSP) had not been reduced across the board to two years. The two-year requirement was only the qualifying period for lodging a claim entitlement for remedies in the event of unreasonable dismissal.

14. Mr LEE Cheuk-yan held the view that the five "valid reasons" for dismissal as proposed might provide more excuses for employers to justify the dismissal of their employees, and that there would be practical difficulties for the Labour Tribunal when adjudicating disputed cases. Referring to "the employees conduct" being one of the "valid reasons", Mr LEE recalled that the Chinese phrase in the original proposal was "misconduct", and not "conduct". The Chairman agreed that there was substantial difference between the two expressions and suggested that Committee stage amendments should be proposed in due course to remove the ambiguity.

Members/
EMB

15. AC for L (LR), in response, assured members that practical guidelines would be issued to give examples on what might constitute reasonable/unreasonable termination. However, Mr LEUNG Yiu-chung anticipated greater predicament for workers because of the five "valid reasons". He suggested that as practical guidelines were not legally binding, the C for L should prescribe a code of practice similar to the one under the Sex Discrimination Ordinance. At the Chairmans request, ALA5 would confirm whether the C for L was empowered under the Employment Ordinance (EO) to issue codes of practice with legal effect.

ALA5

16. On reinstatement, Mr CHEUNG Man-kwong suggested that the court should be empowered to order for reinstatement even in the absence of mutual consent. Where an employer refused to reinstate the employee, he should be required to pay a higher level of terminal payments. In reply, AC for L (LR) explained the Administrations proposals as follows:

mutual consent was necessary for reinstatement because of the need to maintain good labour relations;
a court order on reinstatement could serve to preserve the continuity of employment;
in the UK, reinstatement had been ordered in respect of only 1% of the cases adjudicated by the Industrial Relations Tribunal; and
the Administration would consider the need for imposing penalties on employers for non-compliance of a re-instatement or re-engagement order in the light of operational experience.

In this connection, the Chairman reminded members that issues related to compulsory versus voluntary reinstatement had been discussed at length by the Panel at the last meeting.

VI Review of sex discriminatory protective provisions under the

Women and Young Persons ( Industry ) Regulations

(LegCo Paper No. CB(1) 1091/96-97(01)

LegCo Paper No. CB(1) 1091/96-97(02))

17. The Deputy Chairman introduced her paper and expressed dissatisfaction on the lack of public consultation on the Administrations proposal to remove the protective provisions under the Women and Young Persons (Industry) Regulations (WYP(I)R). She also stressed that protection of women was one of the important objectives of the Sex Discrimination Ordinance (SDO) and that this positive element of the SDO must not be overlooked.

18. In reply, DS for E&M and Assistant Commissioner for Labour (Rights and Benefits) (AC for L) (RB) elaborated the Administrations position as follows:

women workers well being would not be jeopardised as a result of removal of the restrictive provisions under the WYP(I)R as there were existing and forthcoming statutory provisions to accord general protection to both men and women workers. In fact, some womens groups held the view that certain provisions under the WYP(I)R were too restrictive and had barred women from jobs which they were capable of performing;
consultation with the medical profession had revealed that apart from pregnancy, women were not particularly susceptible; and
pending availability of information on overseas practices and the Government Economists analysis, the Administration had not decided whether there were justifications for extending regulation on hours of work to cover both sexes in some or all economic sectors. There would be wide consultation should any proposals be formulated.

19. Mr LEE Cheuk-yan felt that the proposed repeal of the protective provisions under the WYP(I)R was regressive and that the Administrations study should precede any decision to remove these provisions. In reply, AC for L (RB) explained that the proposed legislative amendments and the major study had been undertaken concurrently, though the latter necessarily took more time. She also informed members that the Equal Opportunities Commission (EOC) took the view that the restrictive provisions under the WYP(I)R should be removed.

20. In this connection, Mr LEUNG Yiu-chung urged that protection should be provided to men as well as women, citing a complaint from male workers for having to work continuously for 72 hours. He suggested that in the WYP(I)R, where reference was made to women in the context of protection, the reference could be extended to workers generally. He sought sight of the advice of the EOC referred to by AC for L (RB). The Chairman advised that the Panel would approach the EOC direct for a written statement on its stand. If possible, the EOC would also be requested to provide the Panel with a copy of its written advice given to the Labour Department.

Clerk

VII Any Other Business

Briefing on Employment (Amendment) (No. 4) Bill 1997

21. Mr MOK Ying-fan briefed members on his Members Bill. DS for E&M advised that on the subject of paternity leave, there were neither provisions nor standards under the International Labour Conventions. The proposed bill would entail a drastic and fundamental change to the EO and would have costs implications for employers. Even in Malaysia, which Mr MOK had referred to, paternity leave was only available to civil servants and was subject to more stringent restrictions. Moreover, as a matter of principle, the Administration would not support legislative proposals which had not been considered by the LAB. In this connection, the Chairman suggested and Mr MOK agreed to refer his bill to the LAB for deliberation.

Mr. MOK/
EMB

Employment (Amendment) (No. 3) 1997

22. The Chairman tabled for members information a copy of his brief on the captioned Bill which sought to include 1 May as a statutory holiday. Commenting on the Bill, DS for E&M advised that the Administration had reservations in view of the imminence of the date of 1 May and that the private sector would be affected in the areas of production plans, operating schedules and business costs, etc. He pointed out that even without the Chairmans proposed amendments, an employer could still designate 1 May as one of the floating holidays currently provided for under the EO. He further reminded the meeting that the LAB had not been consulted on the proposal.

23. In reply to Mr LEE Cheuk-yan, DS for E&M confirmed that 1 and 2 July and 1 October would be statutory holidays under the EO. As regards some members enquiry on the legislative timetable, he said that the Administration would introduce the necessary legislative amendments at the appropriate time.

24. The meeting ended at 4:50 pm.

Legislative Council Secretariat
24 April 1997

Last Updated on 21 August 1998

LegCo Panel on Manpower

Minutes of meeting held on Tuesday, 18 March 1997, at 2:30 p.m. in the Chamber of the Legislative Council Building

I Confirmation of minutes of meeting and matters arising

II Date and items for discussion for next meeting