Legislative Council

LC Paper No. LS230/98-99

Object of the Bill

To adapt certain labour-related ordinances and subsidiary legislation to bring them into conformity with the Basic Law and with the status of Hong Kong as a Special Administrative Region of the People's Republic of China.

LegCo Brief Reference

2. EMB CR 3/3231/88 Pt. XII issued by the Education and Manpower Bureau and dated 25 June 1999.

Date of First Reading

3. 7 July 1999.

Comments

4. A list of the ordinances and subsidiary legislation affected by the proposed amendments in the Bill and a summary of the amendments are at Annex A and B respectively. The affected ordinances and subsidiary legislation relate mainly to labour matters. The proposed amendments are intended to be technical changes.

5. If enacted, the Bill will take retrospective effect from 1 July 1997 to ensure that there is consistency in the interpretation of all laws on and after 1 July 1997. The retrospectivity will not apply however to provisions involving criminal offences or penalties.

Public Consultation

6. There has not been any public consultation on the Bill.

Consultation with LegCo Panel

7. No LegCo Panel has been consulted.

Conclusion

8. Clarification is being sought from the Administration on whether the amendments to sections 44(1) and 45 of the Apprenticeship Ordinance (Cap. 47) are in order would introduce any matter which exceeds the scope of adaptation.

9. In proposing adaptation of the term "Crown" to "State" in some existing provisions relating to immunity or privilege of the "Crown", the Bill may raise issues similar to those to be discussed by the Bills Committee formed recently to study the Adaptation of Laws (No. 16) Bill 1999.

10. A further report will be issued in due course, unless Members see any other problems that may call for earlier action.


Prepared by


CHEUNG Ping-Kam, Arthur
Assistant Legal Adviser
Legislative Council Secretariat
6 July 1999


Encl

Annex A

1. Apprenticeship Ordinance (Cap. 47)
   
   
2. Boilers and Pressure Vessels Ordinance (Cap. 56)
   
   
3. Employment of Young Persons and Children at Sea Ordinance (Cap. 58)
   
   
4. Factories and Industrial Undertakings Ordinance (Cap. 59), Quarries (Safety) Regulations (Cap. 59 sub. leg.) and Factories and Industrial Undertakings (Electricity) Regulations (Cap. 59 sub. leg.)
   
   
5. Trade Boards Ordinance (Cap. 63)
   
   
6. General Holidays Ordinance (Cap. 149)
   
   
7. Protection of Wages on Insolvency Ordinance (Cap. 380)
   
   
8. Occupational Safety and Health Council Ordinance (Cap. 398)
   
   
9. Occupational Safety and Health Ordinance (Cap. 509)

Annex B

Notes:

1

(a) Section 3(1)(a) of the Boilers and Pressure Vessels Ordinance

Section 3(1)(a) provides that the Ordinance does not apply to a boiler, pressure vessel or steam container belonging to the "Crown". The reference to "Crown" is replaced by "State" in accordance with section 7 of Schedule 9 to the Interpretation and General Clauses Ordinance, which provides that where it is expressly provided in an Ordinance that the Ordinance is not binding on the Crown, that reference shall be construed as a reference to the State.

(b) Section 2 (definition of "contractor") of the Factories and Industrial Undertakings Ordinance

Regulation 2 (definition of "electrical contractor") of the Factories and Industrial Undertakings (Electricity) Regulations

References to "Crown" are replaced by "State" to avoid any possible argument that the definitions of "contractor" and "electrical contractor" do not apply to contractors who work for the Central People's Government, the Garrison or other State bodies.

(c) Section 14A(2) of the Factories and Industrial Undertakings Ordinance

The reference to "Crown" relates to the liability of "Crown" in tort for the act or omission of public officers. Under section 3 of the Interpretation and General Clauses Ordinance, "public officer" means any person holding an office of emolument under the Government. As the matter is under the sole responsibility of the Government, the reference to "Crown" is replaced by "Government" in accordance with section 2 of Schedule 8 to the Interpretation and General Clauses Ordinance.

(d) Paragraph 1 of the Schedule to the Protection of Wages on Insolvency Ordinance

Paragraph 2 of the Schedule to the Occupational Safety and Health Council Ordinance

The provisions provide that the Protection of Wages on Insolvency Fund Board and the Occupational Safety and Health Council are not servants or agents of the "Crown" and that they do not enjoy any status, immunity or privilege of the "Crown". It is considered that the intention of the provisions is to rebut the presumption in section 66 of the Interpretation and General Clauses Ordinance, which formerly provided that the Crown was not bound by an Ordinance unless it contained an express provision or by necessary implication that it was bound. As "Crown" in section 66 of the Interpretation and General Clauses Ordinance has already been changed to "State", it is proposed to substitute "State" for "Crown" in the provisions, so as to reflect the intention that the Protection of Wages on Insolvency Fund Board and the Occupational Safety and Health Council do not enjoy any immunity under section 66 of the Interpretation and General Clauses Ordinance.