[Archive] At the Legislative Council on Second Reading of the Employment (Amendment) (No. 2) Bill 2000

Madam President,

I move that the Employment (Amendment) (No. 2) Bill 2000 be read the Second time. The principal amendments of the Bill aim to clarify that an employer may not terminate the employment of an employee during pregnancy or paid sick leave except in circumstances where summary dismissal is justified under section 9 of the Ordinance.

2. Section 9 of the Employment Ordinance provides that an employer may terminate a contract of employment without notice or payment in lieu, only if the employee has committed serious misconduct such as wilful disobedience, fraud, dishonesty or habitual neglect of duties. In all other circumstances, an employer should not dismiss an employee during pregnancy or paid sick leave. If he does, he will be liable to pay compensation to the employee and be subject to prosecution.

3. However, section 15(1) and section 33(4B) of the Ordinance are worded in such a way that they only prohibit dismissal of an employee during pregnancy or paid sick leave initiated under section 6 or section 7 of the Ordinance. These two sections provide for termination of employment with notice or payment in lieu. Wrongful dismissals, which are not justified under section 9, are not included. In other words, if an employer wrongfully invoked section 9 to dismiss an employee during pregnancy or paid sick leave and the summary dismissal was later found to be unsubstantiated, the employee may not receive the remedies provided for under sections 15(2) and 33(4BA), and the employer could not be prosecuted. This is not in line with our policy intent.

4. We therefore propose to amend the relevant sections of the Employment Ordinance to clarify that an employer shall not terminate a continuous contract of employment of a pregnant employee, or of an employee on paid sick leave, otherwise than in accordance with section 9. Employers who have terminated the contract of a pregnant employee or an employee on paid sick leave, unless the contrary is proved, shall be deemed to have terminated the contract otherwise than in accordance with section 9.

5. To protect employers who had acted in good faith but whose decision was later overturned by the court, we propose to allow as a defence for the employer being prosecuted under section 15 or section 33 of the Ordinance to prove that, at the time of terminating the contract of the employee under section 9, he reasonably believed that he had a ground to do so.

6. We have also included in the Bill a number of other clarifying provisions. Under the existing provisions, an employee is entitled to the pro-rata payment of a contractual end-of-year payment to ensure that an employee's entitlement would not be adversely affected by early termination of a continuous contract of employment in circumstances beyond his control. For example, when it is the employer who initiates the termination of contract (except under section 9) or when the employee initiates the termination of contract in the special circumstances prescribed under section 10 of the Ordinance, which covers fear of violence or ill-treatment by his employer.

7. However, section 11F of the Ordinance, as it is presently worded, may give rise to a situation where an employee who wrongfully terminates a contract of employment would be entitled to pro-rata payment whilst an employee who has given proper notice or payment of wages in lieu of notice in accordance with section 6 or 7 would not. We therefore propose to amend section 11F of the Employment Ordinance to the effect that an employee who terminates his contract of employment otherwise than in the special circumstances prescribed under section 10 would not be entitled to pro-rata end of year payment.

8. Under section 25 of the Ordinance, an employer shall pay to his employee, not later than 7 days after the day of termination, any sum due to him and that failure to make such payment within the time limit is a prosecutable offence. This sum includes, for example, wages in lieu of notice, long service payment and compensation for dismissal during paid sick leave. However, there is no time-limit for paying compensation for dismissal during pregnancy. We therefore propose to amend section 25 of the Employment Ordinance to require an employer to make compensation payable for dismissal of a pregnant employee within 7 days after the day of dismissal and to make non-payment within the time limit an offence.

9. At present, acts of discrimination within the meaning of the Sex Discrimination Ordinance and the Disability Discrimination Ordinance are excluded from the Employment Ordinance. This is to avoid subjecting an employer to double penalties under different pieces of legislation in respect of a single act. The same principle should apply in respect of discriminatory acts covered by the Family Status Discrimination Ordinance, which was enacted in 1997. We therefore propose that the Employment Ordinance should be amended to exclude acts of discrimination which are covered by the Family Status Discrimination Ordinance.

10. Finally, we propose to delete from the Employment Ordinance all references to "women" in respect of the Women and Young Persons (Industry) Regulations which are to be re-titled the Employment of Young Persons (Industry) Regulations. This is a consequential amendment necessitated by the removal of the "woman-specific" provisions of the said Regulation following the enactment of the Sex Discrimination Ordinance.

11. Madam President, the Bill contains amendments which aim to clarify the policy intent on a number of issues concerning employment protection. They are essential and largely technical in nature. I commend the Bill to Honourable Members.