PLC Paper No. LS6 /97-98

Paper for the House Committee Meeting
on 11 July 1997

Legal Service Division Report on
Legislative Provisions (Suspension of
Operation) Bill 1997

Objects of the Bill

To suspend the operation of the following Ordinances -

1. Protection of the Harbour Ordinance (106 of 1997);
2. Occupational Deafness (Compensation) (Amendment) Ordinance 1997 (99 of 1997);
3. Hong Kong Bill of Rights (Amendment) Ordinance 1997 (107 of 1997);
4. Trade Unions (Amendment) (No. 2) Ordinance 1997 (102 of 1997);
5. Employee Rights to Representation, Consultation and Collective Bargaining Ordinance (101 of 1997);
6. Employment (Amendment) (No. 4) Ordinance 1997 (98 of 1997); and
7. Employment (Amendment) (No. 5) Ordinance 1997 (100 of 1997)

until such dates as to be appointed by the relevant policy Secretary by notice in the Gazette.

PLC Brief Reference

2. CSO/ADM CR 1/3231/93(97) dated 8 July 1997 issued by the Chief Secretary Office.

Date of First Reading

3. 9 July 1997.

Comments

4. The effect of the Bill is that the operation of the 7 Ordinances concerned will be suspended until such dates as appointed by the relevant policy Secretary (specified in the Bill) by notice in the Gazette.

5. All the 7 Ordinances were assented to on 29 June 1997 and came into operation on 30 June 1997. Clause 8 of the Bill provides that any act done under the 7 Ordinances shall remain valid to the extent that it was valid immediately before the suspension of the Ordinances concerned. The legislative background and legal effect of the 7 Ordinances are stated below in the same order as in paragraph 1.

Protection of the Harbour Ordinance (106 of 1997)

The only effective provision remaining in the Bill when it passed third reading in LegCo was clause 3 (now section 3).

Section 3(1) provides that there shall be a presumption against reclamation in the central harbour. Section 3(2) provides that all public officers and public bodies shall have regard to the principle stated in subsection (1) for guidance in the exercise of any powers vested in them. The boundaries of the central harbour are set out in Schedule 1 of the Ordinance.

The legal effect of section 3 is that it imposes a duty on all public officers and public bodies to have regard to the matters set out in subsection (1) when exercising any powers vested in them. Decisions relating to reclamation are, therefore, subject to judicial review as to whether the duty imposed by section 3(2) has been complied with.

There is reference to the requirement of approval by LegCo in respect of reclamation work in the long title. This does not make sense as the original provision in the bill empowering LegCo to give approval was not passed by LegCo. The definition for elevant Ordinance�in section 2 of the Ordinance is meaningless because the provision which contained this expression was not passed by LegCo.

A copy of the Ordinance is in Annex (a)

Occupational Deafness (Compensation) (Amendment) Ordinance 1997 (99 of 1997)

The Occupational Deafness (Compensation) (Amendment) Ordinance 1997 revises the definition of noise-induced deafness and increases the percentage of permanent incapacity, both being the basis for determination by the Occupational Deafness Compensation Board of the amount of compensation payable to a claimant under the Occupational Deafness (Compensation) Ordinance (Cap. 469).

No Bills Committee has been formed. The Member in charge introduced Committee stage amendments such that noise-induced deafness, originally defined as the sensorineural hearing loss amounting to not less than 50dB in each ear, be reduced to 40dB instead of 30dB as proposed in the Bill. The Bill, as amended by the committee stage amendments, was passed by LegCo.

A marked-up copy of the Ordinance is in Annex (b).

Hong Kong Bill of Rights (Amendment) Ordinance 1997 (107 of 1997)

This is a one-clause Bill which, on the face of it, is to declare the intention of the legislature that the Hong Kong Bill of Rights Ordinance applies to all legislation irrespective of whether the legislation affects legal relations between the Government, public authorities and private persons or it affects only relations between private persons. Under the new section 3(4), this Ordinance does not have retrospective effect. It affects legal relations as from the date of commencement, that is, 30 June 1997.

As background, please note that the National People Congress has declared section 3(1) and (2) of the Hong Kong Bill of Rights Ordinance as to be in contravention of the Basic Law and therefore not adopted as the laws of HKSAR.

Arguably, the new section 3(3) and (4) do not have the effect of changing the law as far as the scope of the Hong Kong Bill of Rights Ordinance is concerned. This is so in light of section 7 of the Ordinance which provides expressly that the Ordinance binds only the Government and all public authorities and any person acting on behalf of the Government or a public authority.

A marked-up copy of the Ordinance is in Annex (c).

Trade Unions (Amendment) (No. 2) Ordinance 1997 (Ord. No. 102 of 1997)

The legal effect of the Ordinance is to require that an officer of a registered trade union be a person ordinarily resident in Hong Kong, to enable a trade union to change its name by a majority vote of its members, and to apply its funds for any purpose (including political purpose) approved by secret ballot of a majority of its members at a general meeting.

A marked-up copy of the Ordinance is in Annex (d).

Employee Rights to Representation, Consultation and Collective Bargaining Ordinance (Ord. No. 101 of 1997)

The legal effect of the Ordinance is to confer rights onto an employee so that he can have the right to be represented by his trade union when negotiating with his employer, whether on certain individual matters, on certain measures proposed by his employer or on a collective agreement.

A Bills Committee had been formed by the House Committee but not activated. The policy aspects of the Bill were instead discussed in a meeting of the LegCo Panel on Manpower on 28 April 1997.

There were some committee stage amendments to add a Chinese text to the Bill and to effect some refinements to the drafting. There was no change in policy.

A copy of the Ordinance is in Annex (e).

Employment (Amendment) (No. 4) Ordinance 1997 (98 of 1997)

The legal effect of the Ordinance is that an employee may bring civil proceedings against his employer in the Labour Tribunal if his employer discriminates against him on the ground of trade union membership and activities. Discrimination includes but is not limited to dismissal. Under the Ordinance, the remedies for such discrimination include, inter alia, monetary compensation and re-employment.

A marked-up copy of the Ordinance is in Annex (f).

Employment (Amendment) (No. 5) Ordinance 1997 (100 of 1997)

The legal effect of this Ordinance is to add 1 May as a statutory holiday for the benefit of employees. Under the Employment Ordinance (Cap. 57), a tatutory holiday�means a holiday for which an employee is entitled to receive pay if he has worked under a continuous contract for his employer for not less than three months preceding a statutory holiday. There are at present a total of 11 statutory holidays in a year, two of which are loating�holidays to be fixed by the employer.

A Bills Committee had been formed by the House Committee but not activated. The Panel on Manpower was briefed on 18 March 1997.

A marked-up copy of the Ordinance is in Annex (g).

Prepared by

Legal Service Division
Provisional Legislative Council
11 July 1997