Occupational Deafness(Compensation)(Amendment)(No.2) 1997

A BILL

Amend the Occupational Deafness (Compensation) Ordinance.

Enacted by the Provisional Legislative Council.

1. Short title and commencement

(1) This Ordinance may be cited as the Occupational Deafness (Compensation) (Amendment) (No. 2) Ordinance 1997.

(2) This Ordinance, other than sections 21 and 22, shall come into operation at the beginning of the day on which this Ordinance is published in the Gazette.

(3) Sections 21 and 22 shall come into operation on 1 January 1998.

2. Interpretation

Section 2 of the Occupational Deafness (Compensation) Ordinance

(Cap. 469) is amended--

(a) in the definition of "noise-induced deafness" by repealing "pure tone" and substituting "hearing";

(b) by adding--

" "amending Ordinance" (《修訂條例"》) means the Occupational Deafness (Compensation) (Amendment) (No. 2) Ordinance 1997 ( of 1997);".

3. Functions and powers of the Board

Section 5 is amended--

(a) in subsection (1)--

(i) in paragraph (d) by repealing "and" at the end;

(ii) by adding--

"(da) to conduct or finance educational and publicity programmes for the purpose of preventing noise-induced deafness by reason of employment; and";

(b) in subsection (2)--

(i) in paragraph (e) by adding "and" at the end;

(ii) by repealing paragraph (f).

4. Payments by the Board from the Fund

Section 8(c) is repealed.

5. Functions of Medical Committee

Section 13 is amended--

(a) in paragraph (d) by adding "and" at the end;

(b) by repealing paragraph (e).

6. Entitlement to compensation

Section 14 is amended--

(a) in subsection (2)--

(i) in paragraph (b)(ii) by repealing "and" at the end;

(ii) in paragraph (c) by repealing the full stop and substituting "; and";

(iii) by adding--

"(d) subject to subsection (5), in the case where he has made an application for compensation ("previous application")--

(i) before the date of his relevant application under section 15;

(ii) which has been refused under section 22(1)(a); and

(iii) in respect of which the Board has not been requested to review its decision under section 23(1) or the Board has confirmed its decision under section 23(2),

he has had at least 24 months of employment in aggregate in any noisy occupation in Hong Kong after the date of that previous application or, where he has made more than one such previous application, after the date of the last such application.";

(b) by adding--

"(5) Subsection (2)(d) shall only apply to a previous application referred to in that subsection which has been refused by the Board under section 22(1)(a) on or after the commencement of sections 1 to 20 of the amending Ordinance.".

7. Application for compensation

Section 15 is amended--

(a) in subsection (1) by adding "or, where appropriate, section 48(1)(i)" after "14(2)";

(b) by repealing subsections (2) to (6) and substituting--

"(2) Upon confirmation by the Board that a claimant fulfils the conditions specified in section 14(2) or, where appropriate, section 48(1)(i), he shall undergo a hearing test at a hearing test centre or a medical examination or both arranged by the Board under section 16(1).".

8. Hearing tests, medical examinations and inquiries

Section 16 is amended--

(a) in subsection (1)--

(i) in paragraph (a) by adding "and" at the end;

(ii) by repealing paragraph (b);

(b) in subsection (2) by repealing "within 21 days after the performance of the test or examination, issue to the claimant and" and substituting "as soon as practicable, issue to".

9. Referral to Medical Committee

Section 19 is amended by repealing "15(5) or".

10. Determination of noise-induced deafness and permanent incapacity

Section 20 is amended--

(a) in subsection (1) by repealing "15(5) or";

(b) in subsection (2) by repealing "pure-tone";

"(3) Subject to section 48(2)(c), the Board shall make a determination under subsection (1) or (2) in accordance with this Ordinance as in force on the date of that determination, irrespective of the date of the application under section 15 to which the determination relates.".

11. Section substituted

Section 22 is repealed and the following substituted--

"22. Refusal of application

(1) Where the Board--

(a) determines that the claimant does not suffer from noise-induced deafness; or

(b) otherwise determines that the claimant is not entitled to compensation,

the Board shall refuse his application for compensation and shall send a notice of refusal informing the claimant of such refusal and reasons for the refusal.

(2) Where a claimant has undergone a hearing test or medical examination under section 16(1) in respect of his application for compensation, a notice of refusal referred to in subsection (1) shall be accompanied by a copy of the report issued to the Board in accordance with section 16(2).".

12. Review of refusal by the Board

Section 23 is amended by adding--

"(1A) The Board may, if it thinks fit, extend the time within which a claimant may request the Board to review its decision under this section.".

13. Certificate of determination of compensation, objection and review

Section 24 is amended--

(a) by adding--

"(1A) A certificate issued under subsection (1) shall be accompanied by a copy of the report issued to the Board in accordance with section 16(2).";

(b) by adding--

"(2A) The Board may, if it thinks fit, extend the time within which a claimant may object to the amount of compensation under this section.".

14. Section added

The following is added before Part VIII--

"27A. Determination of application upon withdrawal

Where--

(a) a claimant indicates in writing or otherwise to the Board that he does not wish to proceed with his application for compensation; and

(b) he has undergone a hearing test or medical examination under section 16(1) in respect of that application,

the Board may, if it thinks fit, continue to process or determine the application as if the claimant had not made such indication.".

15. Expenses for hearing tests etc.

Section 31 is repealed.

16. Section added

The following is added--

"48. Transitional

(1) Notwithstanding section 14(1), a person who--

(a) suffers noise-induced deafness; but

(b) fails to satisfy the Board that he has at any time been employed under a continuous contract in any noisy occupation in Hong Kong within the 12 months before the date of his relevant application under section 15,

is, subject to sections 14(3), 17 and 29, entitled to such compensation as determined by the Board under this Ordinance, if--

(i) he satisfies the Board that--

(A) he fulfils the conditions specified in section 14(2)(a), (c) and (d); and

(B) he has been employed at any time beginning on 1 July 1989 under a continuous contract in any noisy occupation in Hong Kong; and

(ii) he makes his application for compensation within 12 months beginning on the commencement of sections 1 to 20 of the amending Ordinance.

(2) Where, before the commencement of sections 1 to 20 of the amending Ordinance--

(a) a claimant has incurred expenses under section 15(2) or (3) of the pre-amended Ordinance, then sections 8(c), 15(4) to (6) and 31 of the pre-amended Ordinance shall continue to apply to or in relation to such claimant;

(b) a report prepared under section 15(2) or (3) of the pre-amended Ordinance has been provided to the Board, then sections 16(1), 19 and 20(1) of the pre-amended Ordinance shall continue to apply to or in relation to such report;

(c) a claimant has applied for compensation under section 15 of the pre-amended Ordinance and the Board has not determined the percentage of permanent incapacity of the claimant under section 20, the Board shall make such determination in accordance with Schedule 4 to the pre-amended Ordinance.

(3) In this section, "pre-amended Ordinance" (修訂前的本條例") means this Ordinance as in force immediately before the commencement of sections 1 to 20 of the amending Ordinance.".

17. Provisions with respect to the Medical Committee and members thereof

Section 1(1)(c) of Schedule 2 is amended by repealing "Faculty of Otorhinolaryngology of the College of Surgeons of Hong Kong of the Hong Kong Academy of Medicine" and substituting "Hong Kong College of Otorhinolaryngologists of the Hong Kong Academy of Medicine".

18. Noisy occupations

Schedule 3 is amended--

(a) in paragraph (p) by repealing "or" at the end;

(b) in paragraph (q) by repealing the full stop and substituting a semicolon;

"(r) the use of, or work wholly or mainly in the immediate vicinity of, machines engaged in extruding of plastic materials;

(s) the use of paper corrugating machines, or work wholly or mainly in the immediate vicinity of those machines whilst they are being so used;

(t) work wholly or mainly in the immediate vicinity of bleaching and dyeing of fabric involving machines using pressurized steam;

(u) work wholly or mainly in the immediate vicinity of glass-bottling lines;

(v) work wholly or mainly in the immediate vicinity of metal-can bottling lines;

(w) the use of paper folding machines, or work wholly or mainly in the immediate vicinity of those machines whilst they are being so used;

(x) the use of high speed web-fed offset printing machines, or work wholly or mainly in the immediate vicinity of those machines whilst they are being so used; or

(y) work wholly or mainly in the immediate vicinity of gun-firing operation.".

19. Schedule substituted

Schedule 4 is repealed and the following substituted--

"SCHEDULE 4 [ss. 20, 39 & 48]

Percentage of Permanent Incapacity by Reference

to Noise-induced Deafness

20. Amount of compensation

Schedule 5 is amended--

(a) in section 3--

(i) in paragraph (b) by repealing ", the monthly earnings of the claimant are" and substituting "or he is entitled to compensation by virtue of section 48(1) of this Ordinance, the monthly earnings of the claimant are, subject to paragraph (ba),";

(ii) by adding--

"(ba) if a claimant referred to in paragraph (b) has been employed at any time beginning on the commencement of Part V of this Ordinance under a continuous contract in any noisy occupation in Hong Kong, the monthly earnings of the claimant are the median monthly employment earnings of the total employed population of Hong Kong published by the Census and Statistics Department for the quarter immediately before the commencement of sections 1 to 20 of the amending Ordinance;";

(b) by adding--

"3A. Section 3(ba) shall only apply to an application for compensation made on or after the commencement of sections 1 to 20 of the amending Ordinance.

3B. For the purposes of computing a claimant's employment for 12 months in aggregate under section 3(a), the claimant's absence from work by reason of--

(a) the claimant's taking any period of maternity leave under section 12 of the Employment Ordinance (Cap. 57);

(b) the claimant's being unfit therefor on account of injury or sickness; or

(c) the claimant's injury or his suffering from an occupational disease in respect of which compensation is payable in accordance with the Employees' Compensation Ordinance (Cap. 282),

shall not be counted towards the 12-month period in aggregate if the period or periods of absence from work amount to 30 consecutive days or more.".

Consequential Amendments

Employees' Compensation Insurance Levies Ordinance

21. Schedule substituted

Schedule 2 to the Employees' Compensation Insurance Levies Ordinance (Cap. 411) is repealed and the following substituted--

"SCHEDULE 2 [ss. 4, 6(3) & 7(1)]

Bodies Specified for the Purposes of Section 7(1)

Item	Specified body			Proportion of the net resources of the Board to be distributed
			Proportion of the net resources up to the relevant period ending on 31 March 1998		Proportion of the net resources in respect of the relevant period ending on 30 June 1998 and thereafter
1.	The Occupational Safety and Health Council	2/7			10/43
2.	The Employees Compensation Assistance Fund Board	2/7			10/43
3.	The Occupational Deafness Compensation Board	3/7			23/43".

Employees' Compensation Insurance Levy (Rate of Levy) Order

22. Prescribed rate of levy

Paragraph 2(b) of the Employees' Compensation Insurance Levy (Rate of Levy) Order (Cap. 411 sub. leg.) is repealed and the following substituted--

"(b) after the commencement of that section 47 but before the commencement of section 22 of the Occupational Deafness (Compensation) (Amendment) (No. 2) Ordinance 1997 ( of 1997) is 3.5%;

Explanatory Memorandum

This Bill amends the Occupational Deafness (Compensation) Ordinance (Cap. 469) to implement several improvement measures that are considered to be desirable following a review of the Ordinance.

2. Clause 2 amends the definition of "noise-induced deafness" so that hearing loss will no longer be assessed solely by pure-tone audiometry.

3. Clause 3 assigns a new function to the Occupational Deafness Compensation Board ("the Board"). The clause also repeals the general power of the Board to extend certain time-limits under the Ordinance, as the power to extend time limit is instead to be specifically provided for in the relevant sections.

4. Clauses 4, 5 and 15 repeal the provisions relating to reimbursement of expenses for hearing tests and medical examinations.

5. Clause 6 adds a new condition which a claimant who re-applies for compensation for hearing loss must fulfil before he can be entitled to compensation.

6. Clause 7 amends section 15 to give the Board more flexibility in arranging hearing tests and medical examinations. Under the clause, a claimant will no longer be required to undergo a hearing test or medical examination at his own expense. The requirement for the claimant to provide the Board with a report of the hearing test or medical examination is also dispensed with.

7. Clause 8 contains a consequential amendment and amends certain procedures relating to hearing tests and medical examinations.

8. Clauses 9, 10, 21 and 22 are consequential amendments. Clause 10 also adds a provision to specify that the Board should determine the noise-induced deafness and percentage of permanent incapacity in accordance with the Ordinance as in force on the date of the determination irrespective of the date of the application for compensation.

9. Clause 11 clarifies the ground upon which the Board shall refuse an application for compensation.

10. Clauses 12 and 13 provide that the Board may extend certain time-limits. Clause 13 also provides that a certificate of determination of compensation shall be accompanied by the relevant report of hearing loss or medical examination.

11. Clause 14 empowers the Board to continue to deal with an application even though the application has been withdrawn.

12. Clause 16 contains transitional provisions.

13. Clause 17 makes a minor technical amendment.

14. Clause 18 adds 8 additional noisy occupations to Schedule 3.

15. Clause 19 restores the original scale of permanent incapacity and provides for the corresponding percentages of permanent incapacity resulting from the lowering of the deafness threshold.

16. Clause 20 amends Schedule 5 to add certain provisions relating to calculation of monthly earnings for the purpose of compensation under the Ordinance.