LegCo Panel on Public Service
Meeting on 24 February 1997
Giving Effect to the Court of Appeal Judgment
on the AECS Court Case

Introduction

This paper informs Members of the measures proposed by the Government to give effect to the Court of Appeal judgment on the Association of Expatriate Civil Servants (AECS) court case.

Background

2. We briefed Members at the special meeting on 23 December 1996 on our decision not to appeal against the Court of Appeal judgment, which was handed down on 22 November 1996, on the judicial review sought by the AECS on various measures to implement the localisation policy in the civil service. Following our decision not to appeal, we need to work out measures to give effect to the Court’s judgment and to consult the Staff Side on our proposals. We undertook to keep Members informed of the measures we would propose.

3. We have just presented to the Staff Side of the Senior Civil Service Council (SCSC) our package of proposed measures. These are set out in the paper for the SCSC at Appendix. The following is a summary of our proposals.

Principles

4. In formulating the proposals, we have taken account of the following basic principles -

  1. we need to comply with the Court of Appeal judgment;
  2. we should take into account the interests of different groups of officers;
  3. the measures proposed should not create disproportionate management problems or set undesirable precedents; and
  4. the resources required should be realistic and reasonable.

5. We have also taken legal advice in the process to ensure that the measures we propose are in compliance with the Court of Appeal judgment.

Main Features of the Proposals

6. The package of proposals has the following main features -

  1. Demotion scheme and promotion restriction: We shall lift the promotion restriction on overseas agreement officers who transferred to local agreement terms ("transferees") with the restriction. Subject to approval by the Finance Committee, we shall also continue to grant personal salaries with increments and conditions of service to transferees who were demoted one rank upon transfer ("demotees"), until they are promoted back to their original rank. All transferees have to compete for promotion on their own merits with other eligible candidates. No creation of additional posts, reinstatement, retrospective promotion or automatic promotion are proposed.

  2. Chinese language requirement for transfer to local agreement terms: As the Court’s judgment was directed at the requirement as worded in the relevant government circulars, we shall revise the circulars to clarify and elaborate on the existing policy as it has been implemented in practice. Under the policy, Heads of Department/Grade (HoD/HoG) should continue to decide whether or not to apply a Chinese language requirement when considering applications for renewal of agreements on local terms by both local agreement officers and overseas agreement officers applying for transfer to local agreement terms, taking into account the job(s) to be performed over the period of the agreements and whether accommodating an officer without such proficiency during the period would impair the efficient and effective operation of the department.

  3. Transfer to local permanent and pensionable (P&P) terms: We shall lift the temporary suspension imposed on 31 October 1995 on transfer of local agreement officers to local P&P terms. Some 77 local agreement officers who submitted their applications for transfer to local P&P terms before 31 October 1995, and 84 transferees who transferred to local terms before that date, will be allowed to apply for transfer to local P&P terms under the mechanism and criteria for transfer prevailing before the temporary suspension. We shall also take the opportunity to formalise and rationalise the existing criteria and mechanism for application to all other agreement officers serving on local terms who wish to further transfer to local P&P terms. The rationalised arrangements will feature the following criteria -
    1. Chinese language requirement;
    2. service need, taking into account staffing position in the long term and other operational considerations;
    3. performance and conduct as assessed by assessment boards; and
    4. physical fitness.

  4. Requirement for transferees to exhaust their accrued leave: We shall remove the requirement.

  5. Administrative Officers promotion ceilings: We have already lifted the ceilings at AOSGA and AOSGB1 ranks on overseas Administrative Officers after the Court of Appeal judgment was handed down.

Possible Financial Implications

7. The proposal to continue the granting of personal salaries with increments to demotees (para. 6(a) above) will require additional funding. A rough estimation indicates that some $8 million for two years will be required, assuming that all the demotees will be promoted back to their original rank by 1 April 1999. As for individual claims for compensation, it is difficult to make any meaningful assessment at this stage as we do not know whether individual officers, after considering the package of measures offered by the Government, will file such claims. In this regard, we believe that the package of proposed measures should be able to address the affected transferees’ justifiable claims for tangible loss.

Way Forward

8. The package of proposals as set out in the attached paper represents workable solutions that comply with the Court of Appeal judgment, balance the interests of different groups of officers and are within the parameters of our existing appointment policies and practices.

9. We shall further discuss the package of proposals with the Staff Side of the SCSC with a view to implementing them at the earliest instance. We shall approach the Finance Committee for the funding required (mainly that for personal salaries and increments as set out in para. 6(a) above) when we are ready to finalise the proposals for implementation.

Civil Service Branch
21 February 1997

Last Updated on 21 August 1998