Introduction

With around 20 fatal cases caused by industrial accidents in Hong Kong annually in the past decade and there are no signs of improvement (a total of 25 fatal industrial accidents were recorded last year), the Government has on 13 May 2022 published the Occupational Safety and Occupational Health Legislation (Miscellaneous Amendments) Bill 2022 (the “Bill”).

The key objective of the Bill is to reduce the number of fatal industrial accidents in Hong Kong by raising the penalties for occupational safety and health (“OSH”) offences, which have remained unadjusted for over two decades.

In this article, we will discuss the proposed amendments to the Factories and Industrial Undertakings Ordinance (Cap. 59) (“FIUO”) and the Occupational Safety and Health Ordinance (Cap. 509) (“OSHO”), and their subsidiary legislation pursuant to the Bill.

Proposed amendments pursuant to the Bill

Offences under general duty provisions

The Indictable Offences under general duty provisions for employers, proprietors and occupiers of premise

Requirements are imposed on employers and proprietors under the current general duty provisions in the FIUO and the OSHO to ensure the health and safety at work of their employees so far as is reasonably practicable. Where the workplace of employees is located on premises outside of the control of their employers, pursuant to the OSHO, the occupiers of such premises are also under the duty to ensure safety of the premises even if they have no employment relationship with such persons working on the premises. Such general duty provisions under the FIUO and the OSHO include the provision and maintenance of safe system of work and plant, and necessary safety supervision, training, instruction and information.

As proposed under the Bill, extremely serious OSH offences involving death or fatal injuries of worker(s) caused by serious negligence or extremely high culpability involving willful or reckless acts or omissions on the part of employers, proprietors and occupiers of premises could then be tried on indictment on all levels of Court including the District Court and High Court with graver penalties once convicted, and not just summarily in the Magistrates’ Courts. To achieve greater deterrent effect, the proposed maximum penalty on conviction upon indictment would be a fine of HK$10 million, representing a 20 times of the current maximum fine of OSH legislation and the highest maximum penalty under Hong Kong laws, with a maximum of imprisonment term of two years for a duty holder found to be grossly negligent or with willful misconduct.

When determining the levels of fines, as proposed under the Bill, the Courts are required  to take into account the business turnover of convicted entities in the financial year which the offence was committed, but could exclude revenue arising incidentally or is exceptional in nature.

Increase in maximum penalty for summary convictions

Considering the generality of the general duty provisions imposed upon employers under the FIUO and the OSHO which broadly applicable to a wide range of industries, site conditions and work procedures with different risk levels, to prevent fatal or otherwise serious accidents from happening, it is also proposed under the Bill to increase the maximum fine of HK$200,000 and HK$500,000 pursuant respectively to the FIUO and the OSHO to HK$3 million, with maximum imprisonment term of 6 months.

Further, employees are also under the duty to ensure reasonable care for the health and safety of themselves and of others who may be affected by their acts or omissions at work. Where employees are found in breach of the general duty provisions applicable to them, the maximum fine for employee-related offences will be HK$150,000 as proposed under the Bill, with maximum imprisonment term of 6 months.

Other penalty provisions

Save for the general duty provisions mentioned above, the Government has also reviewed the other provisions in the FIUO and the OSHO and found that the penalties imposed under the current regime could not accurately reflect the seriousness of the offences. Pursuant to the Bill, a number of offences under the OSH legislation would be systemically re-categorized as “very serious”, “serious” and “minor” based on  the severity of the harm that may cause (and the chance of causing such harm) to the employee , alongside with an increase in the maximum penalty for both employer and employee-related offences to HK$400,000 and HKD$150,000 respectively.

Extension of time limit for prosecution for offences triable summarily

Last but not the least, to allow the Labour Department sufficient time for conducting in-depth investigations and collecting evidence especially in respect of serious cases, the time limit for prosecution for offences triable summarily will be extended from six months to one year. There will be no time limit for prosecution for indictable offences.

Takeaway

The above proposed amendments send a loud and clear message to the OSH duty holders to pay more attention to implement safety measures and prevent accidents. It remains to be seen whether tougher penalties can help create safer industrial work places. Meanwhile, employers, occupiers and contractors should review their existing safety policies, conduct safety audits and provide frequent reminders to their fellow sub-contractors and employees to increase their awareness on safety risks and hazards in the work place.

 

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2022