Cap. 398 - Occupational Safety and Health Council Ordinance

To establish the Occupational Safety and Health Council as body corporate for the fostering of safer and healthier working conditions in Hong Kong, and to provide for the payment of a levy by employers, and for matters incidental thereto. [22 August 1988](Format changes—E.R. 4 of 2019) Part I Preliminary 1. Short title This Ordinance may be cited as the Occupational Safety and Health Council Ordinance. 2. Interpretation In this Ordinance, unless the context otherwise requires—Chairman (主席) means the Chairman of the Council appointed under section 3(2)(a) or any other person when acting as Chairman;contribution (分擔費) means the contribution assessed under section 16;Council (職安局) means the Occupational Safety and Health Council established under section 3;Executive Director (總幹事) means the person who holds the office of Executive Director under paragraph 3(1) of the Schedule;financial year (財政年度) means the period fixed as the financial year of the Council under section 9(1);member (成員) means a member of the Council referred to in section 3(2) and any person when acting as a member;penalty (罰款) means the penalty payable under section 19(3);surcharge (附加費) means the surcharge imposed under section 19(1).(Amended 33 of 1990 s. 30) Part II Establishment of the Occupational Safety and Health Council 3. Establishment of the Council (1) There shall be established a body corporate, to be called the Occupational Safety and Health Council, which shall have such powers and duties as are conferred and imposed on it by, or by virtue of, this Ordinance.(2) The Council shall consist of—(a) a Chairman who shall be appointed by the Chief Executive for a term not exceeding 3 years;(b) a Vice-Chairman who shall be appointed by the Chief Executive for a term not exceeding 3 years;(c) not less than 10 nor more than 14 other members not being public officers who, in the opinion of the Chief Executive, represent employers, employees, professional and academic interests and who shall be appointed by the Chief Executive for a term not exceeding 3 years;(d) not more than 5 other members being public officers each of whom shall be appointed by the Chief Executive and hold office at the discretion of the Chief Executive,and the members of the Council shall be the governing body thereof and shall comprise its managing board with authority, in the name of the Council, to exercise and perform the powers and duties conferred and imposed on the Council by, or by virtue of, this Ordinance. (Amended 54 of 2000 s. 3)(3) The Schedule shall have effect as respects the Council and the members thereof.(4) The Chief Executive may by order amend the Schedule. (Amended 54 of 2000 s. 3)(5) For the removal of doubt it is declared that, save insofar as is inconsistent with the provisions of this Ordinance, Part VII of the Interpretation and General Clauses Ordinance (Cap. 1) shall apply in relation to the Council and appointments thereto. 4. Purposes of the Council The purposes of the Council are—(a) to foster greater awareness among the community;(b) to promote the application of modern technology;(c) to promote education and training;(d) to disseminate technical knowledge;(e) to develop strategies and formulate programmes;(f) to provide consultancy services; and(g) to encourage and facilitate co-operation and communication between the Government, employers, employees and relevant professional and academic bodies,in furtherance of the encouragement and promotion of higher standards of safety and health for people at work. 5. General powers of the Council (1) The Council may do such things as are expedient for or conducive to the attainment of the purposes declared in or permitted or assigned under section 4 or which in the opinion of the Council are necessary to facilitate the proper carrying out of the purposes of the Council.(2) Without restricting the generality of subsection (1) the Council may—(a) take on lease, purchase, or otherwise acquire and hold, manage and enjoy property of any description, and sell, let or otherwise dispose of the same;(b) conduct and commission research into any matter relating to its purposes;(c) charge fees for the use of any facility or service provided by the Council;(d) appoint such employees as it may determine on such terms and conditions as the Council thinks fit including the payment of allowances, benefits and remuneration;(e) make or provide ex gratia payments to any employee, or to the personal representative of a deceased employee or to any other person who was dependent on such employee at his death;(f) exercise any of its powers either alone or in association with any other person or persons. Part III Financial 6. Resources of the Council (1) The resources of the Council shall consist of—(a) all amounts of contribution, surcharge and penalty received by the Council; (Amended 33 of 1990 s. 30)(b) all monies, including grants, loans, funds, donations, fees, rent, interest, proceeds from the sale of publications of the Council or property held by or on behalf of the Council and accumulations of income, lawfully received by the Council for or in connection with the carrying out of its purposes; and(c) all property and assets lawfully acquired by the Council.(2) All money paid to or received by the Council shall be deposited with any bank nominated by the Council as the Financial Secretary may approve. 7. Borrowing powers (1) The Council may, subject to the approval of the Financial Secretary, borrow by way of overdraft, mortgage or otherwise, such sums as it may require for meeting its obligations or discharging its functions under this Ordinance.(2) A person lending money to the Council shall not be concerned to inquire whether the borrowing of the money is legal or regular or whether the money raised has been properly applied and shall not be prejudiced by any illegality or irregularity or by misapplication or non-application of the money. 8. Use of surplus funds All money of the Council that is not immediately required shall be invested on deposit in any bank nominated by the Council and approved by the Financial Secretary, either generally or in any particular case, for the purpose or in such other forms of investment as the Financial Secretary may approve. 9. Estimates (1) The Council shall fix a period to be the financial year of the Council.(2) The Council shall in each financial year adopt estimates of income and expenditure for the ensuing financial year and, before a date to be appointed by the Chief Executive, send them to the Chief Executive for his approval together with a programme of its activities for the ensuing financial year.(3) The Chief Executive may require the resubmission of a programme or estimates, modified as he may direct.(Amended 54 of 2000 s. 3) 10. Accounts and statements The Council shall keep proper accounts and proper records in relation to the accounts and shall cause to be prepared for each financial year statements of the accounts of the Council which shall—(a) include an income and expenditure account and balance sheet; and(b) be signed by the Chairman. 11. Auditor (1) The Council shall appoint an auditor, who shall be entitled at any time—(a) to have access to all books of account, vouchers and other records of the Council; and(b) to require such information and explanation,as he considers necessary to discharge his function.(2) The auditor shall, as soon as is practicable and in any case not later than 4 months after the close of each financial year, audit the accounts required by section 10 and shall submit a report on the accounts to the Council. 12. Annual report The Council shall, not later than 9 months, or such longer time as the Chief Executive may determine, after the close of each financial year submit—(a) a report on the activities and affairs of the Council for that year;(b) a copy of its statements of the accounts therefor; and(c) the auditor’s report on the accounts,to the Chief Executive who shall cause the same to be laid on the table of the Legislative Council.(Amended 54 of 2000 s. 3) Part IV Financial Contribution (Amended 33 of 1990 s. 30) 13. (Repealed 33 of 1990 s. 30) 14. (Repealed 33 of 1990 s. 30) 15. (Repealed 33 of 1990 s. 30) 16. Liability of exempt employers for contribution (1) The Council may impose a contribution on an employer of persons in any employment which has been exempted from the application of Part IV of the Employees’ Compensation Ordinance (Cap. 282) under section 39(3) thereof in such amount as the Council may assess.(2) In assessing the amount of contribution, if any, to be paid by an employer the Council shall have regard to—(a) the premium that would, but for section 39(3) of the Employees’ Compensation Ordinance (Cap. 282), be payable by the employer for an insurance policy in respect of his employees; (Amended 33 of 1990 s. 30)(aa) that proportion of the net resources of the Employees’ Compensation Insurance Levies Management Board specified in the third column of Schedule 2 to the Employee’s Compensation Insurance Levies Ordinance (Cap. 411) and attributable to the Council; and (Added 33 of 1990 s. 30)(b) the likely ability of the employees to benefit from the activities of the Council.(3) Where the Council has assessed the amount of contribution to be paid by an employer it may by notice in writing require the employer to pay the amount of contribution so assessed.(4) A contribution assessed by the Council under subsection (1) shall be paid by the employer to the Council within 2 months of the notice being served.(5) Where the Council has imposed a contribution on an employer, it shall, if requested by the employer, within 14 days after the receipt of the request, provide the employer with written reasons for its assessment of that amount. 17. (Repealed 33 of 1990 s. 30) 18. Government payments (1) The Government shall each year make payments to the Council out of moneys appropriated for that purpose by the Legislative Council.(2) The amount of the Government’s payment shall bear the same relation to that proportion of the total amount of levy received or receivable by the Employees’ Compensation Insurance Levies Management Board (the Board) under Part IV of the Employees’ Compensation Insurance Levies Ordinance (Cap. 411) and the total amount of contribution received or receivable by the Council as the number of its employees bears to the total number of employees in Hong Kong as estimated from time to time by the Commissioner for Census and Statistics. (Amended 33 of 1990 s. 30)(3) In this section, proportion (比率) means that proportion of the net resources of the Board specified in the third column of Schedule 2 to the Employees’ Compensation Insurance Levies Ordinance (Cap. 411) and attributable to the Council. (Added 33 of 1990 s. 30) 19. Surcharge for non-payment of contribution (1) If an employer fails without reasonable excuse—(a) (Repealed 33 of 1990 s. 30)(b) to pay the contribution within the time required by section 16,the Council may impose on the employer a surcharge not exceeding 10 per cent of the value of the contribution. (Amended 33 of 1990 s. 30)(2) The Council shall by notice in writing notify the employer of any surcharge imposed under subsection (1), and the surcharge shall thereupon be payable by the employer.(3) If the surcharge or any part of the contribution in respect of which the surcharge was imposed is not paid to the Council within 28 days of the notice being served the employer shall be liable to pay in addition a penalty of 5 per cent of the amount unpaid. (Amended 33 of 1990 s. 30) 20. Recovery of contribution, etc. (1) Any amount of contribution, surcharge or penalty due and payable under this Ordinance shall be recoverable as a civil debt due to the Council. (Amended 33 of 1990 s. 30)(2) An action under subsection (1) may be brought in the District Court notwithstanding that the amount claimed exceeds the limit in that respect provided in the District Court Ordinance (Cap. 336). 21. Refund of contribution to employer Where the Council is satisfied that—(a) (Repealed 33 of 1990 s. 30)(b) an amount of premium that was estimated for the purpose of an assessment of contribution under section 16 should be reduced,it may if requested by the employer refund to the employer an appropriate amount of contribution.(Amended 33 of 1990 s. 30) Part V Objections and Appeals 22. Objections (1) Any employer who is required to pay any surcharge under section 19(1) or who is required to pay any contribution under section 16(1) may, by notice in writing served on the Council within 21 days after the surcharge or contribution becomes payable or within such further time as the Council may allow, object to the surcharge or contribution.(2) A notice of objection under subsection (1) shall state the grounds of objection and shall be accompanied by all written statements and other documentary evidence relied upon by the objector in support of the objection.(3) Subject to subsection (4), an objection under subsection (1) shall be considered by the Council, which may uphold, cancel or reduce the surcharge or contribution.(4) An objection shall not be considered unless the objector has paid the amount of the surcharge or contribution which is the subject matter of the objection. (Amended 33 of 1990 s. 30)(5) The Council shall by notice in writing notify the objector of the decision under subsection (3) and of the reason for arriving at that decision within 28 days after the receipt by the Council of the notice of objection under subsection (1), or such further time as the Council may with the consent of the Secretary for Labour and Welfare determine, and, if a surcharge or contribution is cancelled or reduced, shall, within 14 days after the decision under subsection (3) is made, repay the amount of surcharge or contribution cancelled or reduced to the objector. (Amended L.N. 106 of 2002; L.N. 130 of 2007) 23. Appeals (1) An objector who is aggrieved by a decision notified to him under section 22(5) may appeal to the District Court against that decision.(2) An appeal under subsection (1) shall be lodged within 30 days of the notice under section 22(5) being served.(3) On hearing any appeal under this section the District Court may—(a) uphold, cancel or reduce the surcharge or contribution;(b) if it cancels or reduces a surcharge or contribution, order the repayment of the amount of surcharge or contribution cancelled or reduced, with interest from the date of payment to the Council at such rate as the court may determine or without interest; and(c) make such order as it thinks fit as to the payment of the costs of the hearing.(4) The Chief Justice may make rules of court for the purposes of this section. Part VI Miscellaneous 24. Offences (1) Any person who is knowingly concerned in, or in the taking of steps with a view to, the fraudulent evasion of the payment of a contribution, whether due from him or from any other person, commits an offence and is liable on conviction to a fine at level 3 or 20 times the amount of contribution that was or was intended to be evaded by his conduct, whichever is the greater.(2) Any person who—(a) lodges, produces, supplies or sends for the purposes of this Ordinance or otherwise makes use for those purposes of any declaration or other document, or record, which to his knowledge is false in a material particular;(b) in keeping or maintaining any record for the purposes of this Ordinance makes an entry which to his knowledge is false in a in a material particular; or(c) in providing any information for the purposes of this Ordinance, makes any statement which he knows to be false in a material particular or recklessly makes a statement which is false in a material particular,commits an offence and is liable to a fine at level 3.(Amended 33 of 1990 s. 30; E.R. 4 of 2019) 25. Evidence by certificate A certificate purporting to be signed by the Chairman or any member authorized by the Council—(a) (Repealed 33 of 1990 s. 30)(b) that any notice required by or under this Ordinance has or has not been given or has or has not been given at any date; or(c) that any amount of contribution, surcharge or penalty due under this Ordinance has not been paid, (Amended 33 of 1990 s. 30)shall be sufficient evidence of that fact until the contrary is proved. 26. Chief Executive may give directions (1) The Chief Executive may give to the Council such directions as he thinks fit in relation to the performance of its functions or the exercise of its powers and the Council shall comply with those directions. (Amended 54 of 2000 s. 3)(2) No such direction shall be inconsistent with any provision of this Ordinance. 27. Service by post Any document required to be served under this Ordinance may be served by post. 28. Financial Secretary may charge fees The Financial Secretary may charge fees for any service provided to the Council by the Government. 29. Regulations (1) The Chief Executive in Council may by regulation provide— (Amended 54 of 2000 s. 3)(a) for records to be kept by employers; (Amended 33 of 1990 s. 30)(b) for information to be supplied by employers; (Amended 33 of 1990 s. 30)(c) (Repealed 33 of 1990 s. 30)(d) generally, for the better carrying out of the provisions and purposes of this Ordinance.(2) Regulations under this section may provide that a contravention of any specified provision of any such regulation shall be an offence and may provide penalties therefor not exceeding a fine at level 3. (Amended E.R. 4 of 2019) 30. Protection of members of Council (1) No—(a) member of the Council;(b) member of any committee of the Council;(c) employee of the Council;(d) person exercising powers in association with the Council under section 5(2)(f),acting in good faith shall be personally liable for any act done or default made by—(i) the Council;(ii) any committee of the Council;(iii) any such member, employee or person,in the exercise and performance (or the purported exercise and performance) of the powers and duties conferred and imposed on the Council under this Ordinance.(2) The protection afforded under subsection (1) to any member, employee or other person in respect of any act or default shall not affect any liability of the Council for that act or default.(Replaced 33 of 1990 s. 30) Schedule [s. 3]Provisions with respect to the Council and Members thereof 1. The Council shall have a common seal. 2. The Council shall not be regarded as a servant or agent of the Government or as enjoying any status, immunity or privilege of the Government. (Amended 23 of 2002 s. 35) 3. (1) The Council shall appoint an Executive Director and shall determine the terms and conditions of his appointment; but shall obtain the approval of the Chief Executive to any proposed appointment and to the suspension and dismissal of the person appointed. (Amended 54 of 2000 s. 3)(2) The Executive Director shall perform, on behalf of the Council, such functions as the Council may assign to him.(3) The Executive Director shall not without the permission of the Chairman take part in any deliberation of the Council which concerns the terms of his own appointment, suspension or dismissal and shall not vote on any question concerning these matters. 4. (1) Subject to subparagraph (3), a member of the Council shall hold and vacate his office in accordance with the terms of his appointment and shall, on ceasing to be a member, be eligible for re-appointment.(2) Any member other than a member appointed under section 3(2)(d) may at any time—(a) resign his office by notice in writing to the Chief Executive; or(b) be removed from office by the Chief Executive for permanent incapacity or other sufficient cause,and upon such resignation or removal the term for which he was appointed shall be deemed to have expired.(3) Where any member appointed under section 3(2)(a), (b) or (c) is precluded by temporary incapacity or other cause from exercising his functions as a member for any period, the Chief Executive may appoint another person to act in place of that member during that period.(4) Where any question arises under subparagraph (2) or (3) as to whether any incapacity or cause exists or whether any incapacity is temporary or permanent or any cause sufficient, the decision of the Chief Executive shall be final.(Amended 54 of 2000 s. 3) 5. If the Chief Executive is satisfied that a member of the Council appointed under section 3(2)(c)—(a) has been absent from more than 3 consecutive meetings of the Council without the permission of the Council; or(b) has become bankrupt or made an arrangement with his creditors; or(c) is incapacitated by physical or mental illness; or(d) is otherwise unable or unfit to discharge the functions of a member,the Chief Executive may declare his office as a member of the Council to be vacant, and shall notify the fact in such manner manner as the Chief Executive thinks fit; and upon such declaration the office shall become vacant. (Amended 54 of 2000 s. 3) 6. The quorum of the Council shall be 10 and, while a member is disqualified from taking part in a decision or deliberation of the Council in respect of a matter, he shall be disregarded for the purpose of constituting a quorum of the Council for deciding, or deliberating on, that matter. 7. Subject to the foregoing provisions of this Schedule, the Council shall have power to regulate its own procedure including the manner in which decisions of the Council may be made by a quorum of its members otherwise than at a meeting of the Council. 8. The Council may transact any of its business by circulation of papers amongst members whether any such member is in or outside Hong Kong, and a resolution in writing which is approved in writing by a majority of the members shall be as valid and effectual as if it had been passed at meeting of the Council. 9. (1) The Council may create, and appoint the members of, such committees for the better carrying out of the purposes and powers of the Council as it thinks fit.(2) Persons who are not members of the Council are eligible for appointment to committees.(3) The chairman of a committee created under subparagraph (1) shall be appointed by the Council and the number of members of a committee shall be determined by the Council.(4) Subject to the terms of any delegation by the Council or to any directions of the Council, a committee—(a) may exercise and perform the delegated powers and functions with the same effect as if it were the Council itself;(b) shall be presumed to be acting in accordance with the terms of the delegation in the absence of proof to the contrary;(c) may regulate its own procedure.(5) The proceedings of any committee created under subparagraph (1) shall not be invalidated by any defect in the appointment of any member thereof, the absence of any such member from the meeting at which any such proceeding occurred or any vacancy amongst such members. 10. (1) Subject to subparagraph (2), the Council may, with or without restrictions or conditions as it thinks fit, delegate in writing any of its powers to any committee created under paragraph 9(1).(2) The Council shall not delegate the power—(a) to create any committee;(b) to appoint the Executive Director;(c) to determine matters relating to the remuneration and terms and conditions of appointment or employment of the Executive Director or, of the staff of the Council;(d) to establish, manage and control, or enter into an arrangement for the establishment, management and control of any fund or scheme for the purpose of providing for the pensions, gratuities, benefits and payments to the staff of the Council; or(e) to furnish after the expiry of the financial year, a report on the affairs of the Council for that year, a copy of its accounts therefor and the auditor’s report on the accounts. 11. A certificate signed by the Executive Director that an instrument of the Council purporting to be made or issued by or on behalf of the Council was so made or issued shall be conclusive evidence of that fact. 12. Every document purporting to be an instrument made or issued by or on behalf of the Council and to be duly executed under the seal of the Council or to be signed or executed by the Executive Director or a person authorized by the Council to act in that behalf, shall be received in evidence and deemed, without further proof, to be so made or issued unless the contrary is shown. 13. The Council may engage the services of technical and professional advisers as it thinks fit, and may determine all matters relating to their remuneration and terms and conditions of engagement.