Implementation of the Occupational Deafness (Compensation) Ordinance (Cap. 469)
Asked by : Hon Emily LAU
Replied by : SEM
The Occupational Deafness (Compensation) Ordinance (Cap. 469) provides that a person who wishes to apply to the Occupational Deafness Compensation Board for compensation has to make an application within 12 months from the date of his leaving employment in a noisy occupation. It has been reported that a 68 years old retired worker, who suffered from a 50% hearing loss after operating jackhammers on construction sites for years, had missed the deadline for making an application for compensation because he did not have a fixed residential address after retirement, and therefore had not received any documents from the Government. Under the Ordinance, he has to be employed in a noisy occupation again for one month before he may apply for compensation. In this connection, will the Executive Authorities inform this Council whether they:
- are aware of the above case; if so, whether they have taken any measures to assist that worker in applying for compensation;
- will consider amending the above Ordinance to empower the Board to accept late applications on a discretionary basis; and
- will review the adequacy of the current protection offered to workers who suffer deafness by reason of their employment in noisy occupations; if not, of the reasons for that?
The Occupational Deafness Compensation Scheme was set up under the Occupational Deafness (Compensation) Ordinance (the "Ordinance") in 1995 to provide for the compensation of persons who have been exposed to noise in their working environment and have suffered noise-induced deafness. The Ordinance provides that applicants shall:
- have had 5 to 10 years of employment in any designated noisy occupation in Hong Kong;
- have incurred through employment, hearing loss of a specified degree; and
- have been employed under a continuous contract in any noisy occupation in Hong Kong within 12 months before the date of his application.
Against the above background, the Administration would like to respond to Hon Emily Lau's question as follows:
|a.|| Under the Occupational Deafness (Compensation) Ordinance, applications for compensation made thereunder shall be processed and determined by the Occupational Deafness Compensation Board ("the Board"). The Board has been aware of the case in question through the referral by the Working Group on Review of the Occupational Deafness Compensation Scheme of the Labour Department and has taken follow-up actions. Details are provided as follows -
Records of the Board revealed that the worker concerned filed his application for compensation for the first time in 1996. Since his hearing loss was proved in a hearing test to be lower than the degree specified under the Ordinance at that time, the Board rejected his application.
Subsequently, the Administration relaxed the qualification requirements for compensation through the Occupational Deafness (Compensation) (Amendment) Ordinance 1998. To ensure that eligible applicants who had left the designated noisy occupations for 12 months or more would have sufficient time to file their applications, the deadline for them to make application was also extended, through the Amendment Ordinance, to 5 March 1999.
At that time, the Board widely publicized the new qualification requirements and the extended deadline for applications through the mass media and labour organisations, etc. Since some applications which had been rejected might meet the new requirements, the Board sent letters to some 60 claimants (including the worker mentioned above) on 17 July 1998 to their declared addresses, to remind them to submit applications for compensation again before the new deadline.
Late last year, the Commissioner for Labour appointed a working group to review the Occupational Deafness Compensation Scheme. At the meeting with the representatives of the Hong Kong Occupational Deafness Association in February this year, the working group learnt that the worker concerned had missed the extended deadline for application, and thereupon referred the case to the Board for follow-up. The Board examined the case in-depth, but legal advice confirmed that, under the Occupational Deafness (Compensation) Ordinance, the Board had no discretion to accept a late application from the worker concerned.
The Administration is sympathetic that the worker concerned has missed the deadline for applications, but being bound by the Ordinance, is unable to make compensation to him under the Occupational Deafness Compensation Scheme. The Administration is actively exploring other possible ways of providing assistance to the worker concerned.
|b.||Medical opinion has indicated that, apart from working in noisy occupations for a prolonged period, ageing and sickness may also lead to deafness. If an applicant has left the noisy occupation for a long period of time, it will be extremely difficult to ascertain through current technology whether his hearing loss had been wholly or partially caused by work. It is therefore necessary for the Occupational Deafness (Compensation) Ordinance to require applicants to have been employed under a continuous contract in any designated noisy occupation within 12 months before filing their applications. To provide discretionary power to the Board to accept late applications would cause unfairness in assessing hearing loss and determining the amount of compensation.|
|c.||The Commissioner for Labour has appointed a working group to conduct a comprehensive review of the Occupational Deafness Compensation Scheme. The review is expected to be completed in July this year.|