Employment Law &

Practice
LG6 – Liabilities in employment

Darcy Davison-Roberts
January 2023
 TABLE OF CONTENTS

Civil liability .......................................................................................................................................... 3

Employer’s common law duty .................................................................................................................... 3

Negligence ...................................................................................................................................................... 3
Duty of care ................................................................................................................................................................. 3
Competent co-workers ........................................................................................................................................ 4
Safe place of work ................................................................................................................................................. 4
Safe plant and equipment .................................................................................................................................... 5
Safe system of work.............................................................................................................................................. 5
Breach of duty of care ............................................................................................................................................... 5
Causation ...................................................................................................................................................................... 7
Defences ....................................................................................................................................................................... 7
Volenti non fit injuria ............................................................................................................................................ 7
Ex turpi causa ......................................................................................................................................................... 7
Contributory negligence ...................................................................................................................................... 7
Vicarious liability ......................................................................................................................................................... 8

Breach of statutory duty ............................................................................................................................. 8

Establishing breach of statutory duty .................................................................................................................... 9
Standard of liability .................................................................................................................................................... 9
Defences ....................................................................................................................................................................... 9

Occupiers’ liability ...................................................................................................................................... 10

Who is an ‘occupier’? ...............................................................................................................................................10
Who is a ‘visitor’ ........................................................................................................................................................10
Meaning of ‘premises’ ..............................................................................................................................................10
Extent of duty of care ..............................................................................................................................................11
Defences .....................................................................................................................................................................11

Statutory occupational health and safety .................................................................................. 12

Overview of the institutional and legal framework of occupational health and safety in Hong
Kong .............................................................................................................................................................. 12
The Factories and Industrial Undertakings Ordinance (Cap 59) (FIUO) ......................................................12
Occupational Safety and Health Council ............................................................................................................12
Occupational Safety and Health Ordinance (Cap 509) (OSHO) and the Occupational Safety Charter
......................................................................................................................................................................................13
Occupational Safety Officers .................................................................................................................................13

Factory and Industrial Undertakings Ordinance (Cap 59) ................................................................ 14

‘Industrial undertaking’ ............................................................................................................................................14
‘Factory’ ......................................................................................................................................................................14

1
 ‘Construction work’ ..................................................................................................................................................15
Duty of a proprietor (s 6A) .....................................................................................................................................15
Offence ..................................................................................................................................................................16
Duty of persons employed (s 6B) ..........................................................................................................................16
Offence and penalty ...........................................................................................................................................16
Burden of proof (s 18) .............................................................................................................................................16
Regulations and Codes of Practice under the FIUO.........................................................................................17
Review of offences under the FIUO ....................................................................................................................17

Occupational Safety and Health Ordinance (Cap 509) ..................................................................... 18

Purpose of OSHO (s 2) ............................................................................................................................................18
Interpretation (s 3) ....................................................................................................................................................18
Application of OSHO (ss 4 & 5) .............................................................................................................................19
Duty of an employer (s 6) .......................................................................................................................................19
Duty of an occupier (s 7) .........................................................................................................................................20
Who is an ‘occupier’? ...............................................................................................................................................20
Offence and penalty for breach .......................................................................................................................20
The relationship between s 6 and s 7 of the OSHO .........................................................................................20
Duty of an employee ...............................................................................................................................................21
Offence and penalty for breach .......................................................................................................................21
Improvement notice (s 9) ........................................................................................................................................21
Offence and penalty for breach .......................................................................................................................21
Suspension notice (s 10)..........................................................................................................................................21
Offence and penalty for breach .......................................................................................................................22
Reporting obligations under the OSHO ..............................................................................................................22
Offence and penalty for breach .......................................................................................................................22
Inquiries.......................................................................................................................................................................22
Offence and penalty for breach .......................................................................................................................23
Occupational Safety and Health Regulation (Cap 509A) ................................................................................23
The Occupational Safety and Health (Display Screen Equipment) Regulation (Cap 509B) ....................25
Offence and penalty ...........................................................................................................................................25

2
Civil liability
Employer’s common law duty

§ Under the common law, the employer has a duty to care for his employee.

§ The duty is an implied term of the contract of employment an obligation upon the
employer to take reasonable care for the safety of its employees whilst at work.

§ A breach of the duty that causes personal injury, can give rise to a right of action on the
part of the employee. If the employer is a participant in the work, he/she is therefore
responsible for his/her own act(s) of negligence that cause the employee injury as to a
stranger. However, if the employer is not a participant in the work, he/she can be held
vicariously liable for any breach of duty by another employee for whom he/she is
responsible and who causes the employee injury.

Negligence

§ To be successful in a claim for negligence arising out of employment, an employee must

show, as any plaintiff must show:

– A duty of care;

– Breach of that duty;

– Causation; and

– Damages.

§ An employee, like any other claimant in a common law negligence claim, bears the
burden of proof to a civil standard.

§ Negligence, in the context of employment, however, does have some special aspects and
rules that are tailored to the employment relationship.

Duty of care

§ A duty of care in the context of employment is not premised upon the usual neighbour
principle,1 but instead it is presumed to exist between the employer and employee based
on the employment relationship, i.e., the existence of a contract of employment.

1
Donoghue v. Stevenson [1932] AC 562

3
§ The duty of care only arises when the employee is in the course of employment or
engaged in activity that is incidental to employment (see: Jerry Chen v Whirlpool (Hong
Kong) Ltd (2007) 10 HKCFAR 619)

§ The duty of care is non-delegable. Therefore, the employer cannot claim to have
delegated the responsibility to an employee or another skilled person, for example.

§ The duty of care is four-fold.2 It is an affirmative duty requiring that the employer
actively ensure the safety of his or her employees by way of providing:

– Competent employees;

– Safe place of work;

– Safe plant and equipment; and

– Safe system of work.

Competent co-workers

§ Reasonable care in the appointment, training and supervision of staff with whom an
employee is required to work.

§ This is an ongoing duty that might also necessitate the termination of incompetent staff.

§ Under some circumstances, the duty to provide competent co-workers could exist
outside of employment, e.g., harassment or victimisation between co-workers.

§ Where an employer who has taken reasonable care in screening recruits, has provided
adequate training and supervision to staff, and has no knowledge of serious
shortcomings in staff, he or she is unlikely to be liable under this head.

Safe place of work

§ Employer must take reasonable care to ensure that the work premises are safe, including
access to and from the workplace.

§ Duty is one of reasonable care in the circumstances.

§ Overlaps with the duties of an occupier under the OLO.

§ Duty to take reasonable care to provide a safe place of work, can apply even when the
worker is working off-site.

2
Wilsons & Clyde Coal Co Ltd v English [1938] AC 57

4
Safe plant and equipment

§ The employer is under a duty to take reasonable care in the selection and provision of
plant, tools and appliances to be used by workers.

§ Duty does not end with the purchase of safe plant and tools but extends to the on-going
maintenance and inspection of such equipment.

§ Duty requires employer to ensure safe storage of tools to prevent use by unauthorised
personnel whose improper use of equipment might pose a danger to other workers.

§ The employer’s duty extends to instruction in the proper use of equipment.

Safe system of work

§ Most important of the four-fold duty of care. It is the least specific and the most
frequently pleaded and litigated.

§ The steps it may require of the employer vary widely depending on the nature and all of
the circumstances of the work involved, e.g., the manner in which bricks are stacked or
how a truck is loaded.

§ There may be overlap with the other 3 heads of the four-fold duty of care.

§ Consider the case of Lee Tin Yeung v Chiu Chow Association Secondary School [2002]
HKEC 1086, where a teacher was assaulted by a student. The court found that the
employer failed in its duty to provide a safe system of work to prevent such an assault
from happening. This included failing to train the teacher in how to deal with this type of
situation. In so finding, the court held that the assault was reasonably foreseeable under
the circumstances as the student had a history of violence.

§ Duty can extend to protecting the worker from deliberate harm from third parties,
including protecting the employee from mental harm resulting from victimisation,
harassment and bullying at the hands of co-workers.3

Breach of duty of care

§ The standard of care is the same as for normal negligence, that is, the standard of a
reasonable employer having regard to all the circumstances including the unique
characteristics of the employee in question (ie, her level of skill and training). Where a
person has a special skill, she may be judged to a higher standard than would normally be
applied.

3
Waters v Commissioner of Police of the Metropolis [2000] 1 WLR 1607; Ha Kwok Ming v Boxton [2009]
HKEC 2055

5
§ If it is relevant, for example, where the work is in a specialised industry, the court in
determining the appropriate standard may look at the common practice in the industry,
although this is not conclusive.

§ Similarly, although they are not necessarily conclusive, the Court may look at any
statutory guidelines/requirements, eg, statutory speed limits and the ‘road users’ code’ in
traffic cases.

§ The standard of care varies with the circumstances of the case:

– Relevant circumstances, depending on the facts of the case, may include

the claimant’s age, build, mobility, and level of investment experience,
weather conditions, whether there was an emergency etc., as at the time
the act was committed.

– The Court can also look at the:

o Likelihood that someone may be injured;

o Seriousness of the injury that may occur;

o Social value of the activity giving rise to the risk; and

o Cost of preventative measures (and the ease of putting them in place).4

§ As with traditional negligence, in determining the standard of care, foreseeability of the

risk of injury is key to the assessment. Where the risk of injury is unforeseeable; the
employer will not have breached his or her duty of care.

§ Contravention of safety legislation may serve as evidence of negligence for the purposes
of an action in negligence and/or breach of occupier’s liability. The standards set out in
health and safety legislation can assist in determining what is the appropriate standard of
care.

§ If there is a criminal conviction for a contravention of the provisions of the legislation,

the conviction gives rise to a presumption of liability in any civil proceedings [s 62
Evidence Ordinance (Cap 8)].

§ Relevant considerations in establishing the appropriate standard of care can include:

– Likelihood of an accident;

– Magnitude of injury should an accident occur;

– The cost associated with mitigating or eliminating a particular risk;

4
Tomlinson v Congleton Borough Council [2004] 1 AC 46.

6
 – Statutory standards; and

– Common or standard practice within the industry.

Causation

§ Traditional principles of causation and remoteness will apply.

§ For a review of these and other negligence principles, please see PowerPoint
presentation, the recorded lecture and the Lecture Outline for LG2 of the Civil Litigation
course.

Defences

§ Courts are increasingly sensitive to the situation of workers, particularly by reference to

the inherent imbalance of power as between an employer an employee. As such, the
scope for an employer to plead any of the defences outlined below is increasingly
narrow.

Volenti non fit injuria

§ The defence of volenti non fit injuria is available to an employer as it would be to any
other defendant sued in tort.

§ ‘To a willing person, injury is not done’

§ In order for this defence to succeed, the employee must be shown to understood and
appreciated the risk and danger of the work and voluntarily assumed the risk.

§ Due to the requirement that the employee be acting voluntarily, it is difficult to establish
this defence.

Ex turpi causa

§ ‘From a dishonourable cause an action does not arise’

§ Applies to serious illegality, eg, assault.

Contributory negligence

§ It is possible for a plaintiff employee to be held partly responsible for an act or omission
on his/her part, amounting to negligence, that has caused or contributed to the
damage(s) of which he/she is complaining.

7
§ Where there is a breach of duty by both the employer and employee and their
negligence is found to be material causes of the employee’s loss, responsibility is
apportioned between them.5

Vicarious liability

§ Can be pleaded as a separate cause of action such that an employer can be liable to his
or her employees for injuries caused by the negligence of other of his or her employees.

§ In some cases, it may be a better option for the employee to plead vicarious liability of
the employer rather than trying to prove any of the four-fold duties of care.

§ To prove vicarious liability, the complainant must show:

– That the wrongdoer/tortfeasor who caused the injury was an employee of

the defendant–employer;

– That the tort causing the injury was committed by the tortfeasor/co-worker
in the course of employment or while engaging in activities incidental to
the employment; and

– That the act of the employee/tortfeasor was reasonably foreseeable.

§ The plaintiff-employee bears the burden of proving that his or her injuries/damages
occurred in the course of his or her employment.

§ The fact that the employee’s conduct is illegal or fraudulent will not relieve and employer
from vicarious liability.

Breach of statutory duty

§ Breach of statutory duty is another tort under which an employee can sue his or her
employer.

§ Can be asserted as the sole cause of action or in addition to any other tortious cause of
action the employee might have against his or her employer.

§ The tort of breach of statutory duty is independent of any criminal prosecution that might
have taken place and depends on the construction of the relevant legislation, ie, the
court requires proof that the legislature intended to create a cause of action.

§ A legislative intention to create a cause of action is more likely be proved if it can be

shown that:

– The legislation is intended to benefit a class of persons as opposed to the

public generally;

5
Civil Liability (Contribution) Ordinance (Cap 377)

8
 – The legislation does not otherwise provide a remedy for a breach of its
provisions;

– A breach of statutory duty action is the only civil remedy available to an

injured worker; or

– That the breached provision on which the cause of action rests is provided
in primary, not secondary legislation.

Establishing breach of statutory duty

§ To succeed in an action for breach of statutory duty, an injured worker must show the
following:

– That the harm caused falls within the ambit of the legislation;

– That she comes within the class of persons protected by the legislation;

– That the statutory duty(ies) applies to the defendant;

– That the activity that gives rise to the injury and the injury itself comes
within the purpose and ambit of the legislation; and

– That the relevant provision was breached according to its terms.

Standard of liability

§ The standard of liability will vary with the wording of the relevant enactment.

§ It can range from a reasonable standard of care, like that in negligence, to strict liability.

§ Since most workplace safety statutes establish specific precautions to be taken, such as
the use of machine guards, safety belts or platforms for work carried out beyond a
certain height, breaches are usually beyond argument and easy for an injured worker to
prove.

§ The expression ‘so far as reasonably practicable’ arises often in workplace safety
legislation, imposing a duty on employers that goes beyond that of reasonable care.

Defences

§ Volenti non fit injuria

§ Ex turpi causa

§ Contributory negligence

9
Occupiers’ liability

§ The common law regarding occupiers’ liability has largely been codified in the Occupiers
Liability Ordinance (Cap 324) (OLO).

§ Occupiers’ liability is a branch of general negligence law. It imposes on occupiers of a

premises a duty of care to their visitors.

§ Occupiers’ liability is only concerned with the occupancy duty, and not with the activity
duty, which is governed by general negligence law.

§ The question to be asked is: did the employee’s injury arise from the use of unsafe work
premises, or, from an unsafe system of work?

Who is an ‘occupier’?

§ An employer owes a duty of care under the OLO, only if the employee-plaintiff can show
that the employer is an occupier of the premises.

§ The common law test used to determine whether the employer-defendant is an occupier
is one of control.

§ Control normally implies the power to admit and exclude visitors, but something less
than this can constitute control for the purposes of the OLO.

§ Note: it is possible for there to be two or more occupiers at one time.

Who is a ‘visitor’

§ To bring an action under the OLO, a worker must show that he or she was a ‘visitor’ to
the premises where and when the injury or damage occurred.

§ Visitors are persons permitted by the occupier to be on the premises.

§ Persons not permitted to be on the premises are trespassers and are owed no duty of
care.

Meaning of ‘premises’

§ A plaintiff-employee must show that he or she was injured whilst on the premises and
that the injury arose from the defective state of the premises as opposed to an activity
carried out on the premises, i.e, the occupancy duty vs the activity duty set out above.

§ Includes buildings, land and structures normally attached to buildings or land.

§ ‘Premises’ have been found to include:

– Scaffolding;

– The hold of a cargo ship;

10
 – A mini-van used in a film stunt;

– A lift;

– An escalator; and

– A ladder.

Extent of duty of care

§ Section 3(1) of the OLO states that ‘An occupier of premises owes the same duty, the
‘common duty of care’, to all his visitors, except in so far as he is free to and does
extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or
otherwise’.

§ Section 3(2) of the OLO states that: ‘The common duty of care is a duty to take such
care as in all the circumstances of the case is reasonable to see that the visitor will be
reasonably safe in using the premises for the purposes for which he is invited or
permitted by the occupier to be there.’

§ Circumstances to be taken into consideration

– Particular types of visitors [s 3(3) of the OLO]

– Warning of danger [s 3(4)(a) of the OLO]

– Reasonable care in hiring independent contractors [s 3(4)(b) of the OLO]

Defences

§ Contributory negligence

§ Volenti non fit injuria

11
Statutory occupational health and safety
Overview of the institutional and legal framework of occupational health and safety in
Hong Kong

The Factories and Industrial Undertakings Ordinance (Cap 59) (FIUO)

§ Enacted in 1955 and based upon the English Factories Act.

§ Provides standards regarding the safety of factories and industrial undertakings and the
employment of women, young persons and children in such undertakings.

§ Under the FIUO, there are 30 subsidiary regulations dealing with a wide variety of
hazardous activities undertaken in factories, construction, catering, cargo and other
industrial workplaces.

§ Amended in 1989 to incorporate ‘general duties’ that are found at ss 6A and 6B of the
FIUO. These general duties are imposed upon proprietors and persons employed.

§ The Commissioner for Labour can issues codes of practice under s 7A(1) of the FIUO
for the purpose of providing guidance as to how proprietors and employees can comply
with the provisions of the FIUO and its regulations. An example of a code of practice is
the ‘Code of Practice for Bamboo Scaffolding Safety’.

Occupational Safety and Health Council

§ Established in 1988.

§ The OSHC is a statutory corporate body whose duties and obligations are set out in the
Schedule to the Occupational Safety and Health Council Ordinance (Cap 398).

§ Its objective is to promote safety and health in the workplace.

§ Its services include:

– Promotion of occupational health and safety;

– Education and training;

– Consultancy services;

– Research;

– Information dissemination; and

12
 – Facilitating exchanges between the government, employers, employees,
professionals and academics.

Occupational Safety and Health Ordinance (Cap 509) (OSHO) and the Occupational
Safety Charter

§ In 1995, precipitated by increasing numbers of industrial accidents, the HKSAR

Government conducted a comprehensive review of the occupational health and safety
environment in Hong Kong. The result was the Consultation Paper on the Review of
Industrial Safety in Hong Kong.

§ The Government introduced a comprehensive safety management system comprised of

14 elements including pilot schemes, publication of the Occupational Safety Charter and
the Guide to Safety Management and training and education. The system is
implemented via the Factories and Industrial Undertakings (Safety Management)
Regulation.

§ Following this period of review, the Government introduced the Occupational Safety
Charter and shortly thereafter, the OSHO.

§ The Occupational Safety Charter is an aspirational document that encourages self-

regulation of industries vis a vis occupational health and safety. The concept of self-
regulation is based on the principle that the primary responsibility for occupational health
and safety lies with the parties who create the risks and the individuals who work with
the risks, ie, the employers and employees. It is non-binding.

§ The OSHO was enacted in 1997 and is like the FIUO and the OLO however, it regulates
health and safety for both industrial and non-industrial undertakings. This includes
offices, commercial premises, educational institutions, hospitals and other workplaces.

§ The OSHO imposes a general duty of care on employers, occupiers and employees and
includes basic requirements regarding accident and fire prevention, working
environment, workplace hygiene, first aid, manual handling operation and the use of
display screen equipment.

§ There are two regulations under OSHO:

– Occupational Safety and Health Regulation (Cap 509A) (OSHR); and

– Occupational Safety and Health (Display Screen Equipment) Regulation

(Cap 509B) (OSHDSER).

Occupational Safety Officers

§ Investigation and enforcement under the FIUO and the OSHO and subsidiary
regulations is conducted by Occupational Safety Officers (OSO).

§ OSOs can inspect workplaces to ensure that all laws and regulations are complied with
and where necessary, can issue notices where breaches are discovered.

13
Factory and Industrial Undertakings Ordinance (Cap 59)

§ Imposes general duties on proprietors and persons employed at industrial undertakings

to ensure safety and health at work.

§ Whereas OHSO applies to all workplaces, the FIUO applies only to industrial
undertakings.

§ ‘Industrial undertaking’ and ‘factory’ are broadly defined.

‘Industrial undertaking’

§ Section 2 of the FIUO includes within the definition of ‘industrial undertaking’ the
following 11 categories:

1. any factory;

2. any mine or quarry;

3. any industry in which articles are manufactured, altered, cleansed, repaired,

ornamented, finished, adapted for sale, broken up or demolished, or in which
materials are transformed, including shipbuilding;

4. the generation, transformation, and transmission of electricity or motive power of

any kind;

5. any construction work;

6. the loading, unloading, or handling of goods or cargo at any dock, quay, wharf,
warehouse or airport;

7. container handling;

8. the carriage of coal, building materials, or debris;

9. the transport of passengers or goods by road, rail, cableway or aerial ropeway;

10. the preparation of food for consumption and sale on the premises where it is
prepared;

11. any premises or site in or upon which, and the machinery, plant, tools, gear and
materials with which, any of the foregoing industrial undertakings is carried on.

‘Factory’

§ Any premises or place, (other than a mine or quarry), in which articles are
manufactured, altered, cleansed, repaired, ornamented, finished, adapted for sale,
broken up or demolished or in which materials are transformed, and within the close or
curtilage or precincts of which:

14
 – any machinery other than machinery worked entirely by hand is used; or

– 20 or more persons are employed in manual labour.

‘Construction work’

§ The FIUO defines ‘construction work’ at s 2(1) as:

– The construction, erection, installation, reconstruction, repair,

maintenance (including redecoration and external cleaning), renewal,
removal, alteration, improvement, dismantling, or demolition of any
structure or works specified in the Third Schedule;

– Any work involved in preparing for any operation referred to in paragraph

(a), including the laying of foundations and the excavation of earth and
rock prior to the laying of foundations; and

– The use of machinery, plant, tools, gear, and materials in connection with
any operation referred to in paragraph (a) or (b).

Duty of a proprietor (s 6A)

§ A proprietor is obliged to ensure ‘so far as is reasonably practicable’ the health and
safety at work of all persons employed by him at the industrial undertaking.

§ Section 2(1) of the FIUO defines ‘proprietor’ to include:

– ‘the person for the time being having the management or control of the
business carried on in such industrial undertaking or notifiable workplace
and includes a body corporate and a firm and also the occupier of any
industrial undertaking or notifiable workplace and the agent of such
occupier’.

§ The duties of the proprietor include the following:

– Provision and maintenance of plant and systems of work that are, so far
as is reasonably practicable, safe and without risks to health

– Arrangements for ensuring, so far as is reasonably practicable, safety and

absence of risks to health in connection with the use, handling, storage
and transport of articles and substances

– Provision of such information, instruction, training and supervision as is

necessary to ensure, so far as is reasonably practicable, the health and
safety at work of all persons employed by him at the industrial undertaking

– So far as is reasonably practicable as regards any part of the industrial

undertaking under the proprietor’s control, the maintenance of it in a
condition that is safe and without risks to health and the provision and

15
 maintenance of means of access to and egress from it that are safe and
without such risks; and

– Provision and maintenance of a working environment for all persons

employed by him at the industrial undertaking that is, so far as is
reasonably practicable, safe, and without risks to health.

Offence

§ A proprietor of an industrial undertaking who contravenes s 6A commits an offence and

upon conviction is liable to payment of a fine at HK$500,000

§ Where the offence is committed wilfully and without reasonable excuse fine of
HK$500,000 and 6 months imprisonment.

Duty of persons employed (s 6B)

§ A person employed at an industrial undertaking is obliged to:

§ Take reasonable care for the health and safety of himself or herself and of other
persons who may be affected by his or her acts or omissions at work; and

§ To co-operate with the employer or other person so far as may be necessary to enable
the requirements imposed on them by FIUO or any other Ordinance with which to
comply.

§ It should be noted that s 6B does not confer a right of civil action in the event there is a
failure to comply with s 6B [s 19 of the FIUO].

Offence and penalty

§ Non-compliance with s 6B(1) is an offence.

§ A person who willfully and without reasonable excuse does anything while at work likely
to endanger himself or other persons commits an offence.

§ Liable upon conviction to payment of a fine at level 4.

§ Where committed willfully and without reasonable excuse, payment of a fine of $50,000
and six months imprisonment.

Burden of proof (s 18)

§ Section 18 of the FIUO imposes an evidential burden on the defendant to prove the
limits of what is practicable.

§ For example, if the offence is one of failing to comply with a duty or requirement to do
something so far as is necessary, where practicable, so far as is reasonably practicable,
or so far as practicable or to take all reasonable steps, all practicable steps, adequate
steps or all reasonably practicable steps to do something – the onus is on the accused

16
 to prove that it was not necessary, not practicable or not reasonably practicable to do
more than was in fact done to satisfy the duty or requirement, or that he has taken all
reasonable steps, or practicable steps or done the appropriate thing to satisfy the duty
or requirement.

Regulations and Codes of Practice under the FIUO

§ The Commissioner for Labour is empowered to make regulations and codes of practice
under the FIUO.

§ Currently, there are 30 regulations that address a wide variety of issues including
prescribing detailed safety and health standards for work situations, plant and
machinery, and processes and substances.

§ The regulations cover various aspects of hazardous work activities in industrial

workplaces, including factories, building and engineering, construction sites, catering
establishments, cargo and container handling undertakings.

Review of offences under the FIUO

§ Level 3 fine:

– For offences under ss 6BA(7)(d), (8), (14) and 9

§ Level 4 fine:

– For offences under s 6B(2)

§ Level 5 fine:

– For offences under ss 6, 6BA(5) and 10 (3)

– For offences under s 6B(3), where done willfully and without reasonable
excuse

§ Fine of $200,000 and a 6 month jail term:

– For offences under s 10(1A), (1C), (2)

§ Fine of $500,000:

– For offences under s 6A(3), a defendant is liable on conviction to a fine of

$500,000

– Where done willfully and without reasonable excuse, the maximum term
of imprisonment is 6 months per s 6A(4).

§ Where the person convicted is a company and it can be proved that the offence was
committed with the consent, connivance of or was attributable to any neglect on the part
of a director, manager, secretary or similar officer of the company, the director,

17
 manager, secretary or other similar officer will be guilty of the offence [s 14(1) of the
FIUO].

§ Similar liability will attach where the person convicted of a crime under the FIUO is a firm
and it can be shown that the offence was committed with the consent, connivance of or
was attributable to any neglect on the part of any partner in the firm or any person
concerned with the management of the firm, the partner or persons concerned in the
management will be guilty of the offence [s 14(2) of the FIUO].

Occupational Safety and Health Ordinance (Cap 509)

Purpose of OSHO (s 2)

§ The purpose of OSHO is:

– To ensure the safety and health of employees when they are at work;

– To prescribe measures that will contribute to making the workplaces of

employees safer and healthier for them;

– To improve the safety and health standards applicable to certain

hazardous processes, plant and substances used or kept in workplaces;
and

– Generally, to improve the safety and health aspects of working

environments of employees.

Interpretation (s 3)

§ As set out above, OSHO applies to employers, occupiers and employees. The terms are
defined at s 3(1) of the OSHO as follows:

– ‘Employer’ – any person who employs natural persons under contracts of

employment or apprenticeship.

– ‘Occupier’ – any person who has a degree of control over the premises or
workplace.

– ‘Employee’ – is a natural person who works under a contract of

employment or apprenticeship but does not include a domestic servant.

– ‘Work’– means work as an employee.

o A person is ‘at work’ only during the time when the person is at a
workplace.

– ‘Workplace’ – any place where employees work, excluding:

o A place where only self-employed persons work;

18
 o When a vehicle is designed or used for the carriage of people, animals
or goods is located in a public place, the seat or position normally
occupied by the driver of the vehicle;

o An aircraft or vessel when located in a public place;

o Domestic premises at which the only employees are domestic

servants;

o Any other place of a kind prescribed by a regulation for the purposes

of s 3 ‘workplace’.

Application of OSHO (ss 4 & 5)

§ OSHO imposes statutory obligations in respect of workplace safety and health on:

– Employers;

– Occupiers of premises, and

– Employees.

§ It also applies to independent contractors and self-employed persons in their capacity as

employers and occupiers.

§ OSHO binds the Government.

Duty of an employer (s 6)

§ The duty of the employer is stated as follows: ‘Every employer must, so far as
reasonably practicable, ensure the safety and health at work of all the employer’s
employees.’

§ An employer is deemed to have failed in his or her general duty when he or she fails to:

– Provide or maintain plant and systems of work that are, so far as

reasonably practicable, safe and without risk to health;

– Make arrangements for ensuring, so far as reasonably practicable, safety

and absence of risks to health in connection with the use, handling,
storage or transport of plant or substances;

– Provide such information, instruction, training and supervision as may be

necessary to ensure, so far as reasonably practicable, the safety and
health at work of the employer’s employees;

– As regards any workplace under the employer’s control—

o Maintain the workplace in a condition that is, so far as reasonably

practicable, safe and without risks to health;

19
 o Provide or maintain a working environment for the employer’s
employees that is, so far as reasonably practicable, safe and without
risks to health’.

§ An employer who fails to comply with s 6(1) of OSHO commits an offence and is liable
upon conviction to payment of a fine of HK$200,000.

– Where an employer fails to comply with s 6(1) intentionally, knowingly or

recklessly commits an offence and is liable upon conviction to payment of
a fine of HK$200,000 and to imprisonment of 6 months.

Duty of an occupier (s 7)

§ Where an employee’s workplace is located on premises not under his employer’s

control, the occupier of those premises must ensure that:

– the premises; and

– the means of access to and egress from the premises; and

– any plant or substances kept at the premises, are, so far as reasonably

practicable, safe and without risks to health.

Who is an ‘occupier’?

§ An occupier includes a person who has any degree of control over the premises or
workplace [s 3(1) of the OSHO].

§ A person who, under a lease or contract, has an obligation for the maintenance or repair
of premises, or the safety of, or the absence of risks to health arising from the condition
or use of any plant or substance located on the premises [s 3(5) of the OSHO].

§ A person who, under a lease or contract, has an obligation to provide, maintain or repair
a means of access to, or egress from, premises [s 3(6) of the OSHO].

Offence and penalty for breach

§ An occupier who fails to comply with s 7(1) of the OSHO commits an offence and is
liable upon conviction to a fine of HK$200,000 [s 7(2) of the OSHO].

§ Where an occupier fails to comply with s 7(1) and does so intentionally, knowingly or
recklessly, they commit an offence and will be liable upon conviction to payment of a
fine of HK$200,000 and imprisonment of 6 months [s 7(3) of the OSHO].

The relationship between s 6 and s 7 of the OSHO

§ An employer is responsible to provide a safe system of work for his or her employees

§ An occupier is only responsible for the physical safety of the premises.

20
Duty of an employee

§ Pursuant to s 8(1) of the OSHO, an employee whilst at work must so far as reasonably
practicable:

– Take care for the safety and health of persons (including the employee)
who are at the employee’s workplace and who may be affected by the
employee’s acts or omissions at work; and

– Co-operate with the employer or other person so far as may be necessary

to enable the requirements imposed on them by OSHO or any other
Ordinance to be complied with.

Offence and penalty for breach

§ An employee who fails to comply with s 8(1) of the OSHO commits an offence and is
liable upon conviction to payment of a fine at level 3 [s 8(2) of the OSHO].

§ Where an employee fails to comply with s 8(1) of the OSHO intentionally, knowingly or
recklessly commits an offence and is liable upon conviction to payment of a fine at level
5 and imprisonment of 6 months [s 8(3) of the OSHO].

Improvement notice (s 9)

§ The Commissioner for Labour may serve an improvement notice on an employer or an

occupier of the workplace where the Commissioner is of the opinion that the employer
or occupier of the workplace is in breach of the OSHO.

§ The notice must be in writing, state that the Commissioner is of the opinion that the
employer/occupier in in breach of the OSHO and specify a time frame in which the
breach is to be remedied or to be discontinued.

§ The Commissioner can also amend, revoke or suspend a notice once served.

Offence and penalty for breach

§ Where an employer or occupier without reasonable excuse fails to comply with an

improvement notice, he or she commits an offence and upon conviction is liable to
payment of a fine of HK$200,000 and imprisonment of 12 months [s 9(5) & (6) of the
OSHO].

Suspension notice (s 10)

§ Where the Commissioner for Labour is of the view that an activity carried out on the
premises poses an imminent risk of death or serious bodily injury, he or she can serve a
suspension notice on the employer or occupier of the workplace.

§ The suspension notice is to be in writing and is to identify the activity and direct that it be
stopped whilst the suspension notice remains in force.

21
§ Unless otherwise suspended, the suspension notice remains in force until it is revoked.

§ The OSHO does provide for an employer or occupier to apply for review of a suspension
notice [s 11 of the OSHO] as well as a process for appeal against the Commissioner of
Labour’s decision [s 12 of the OSHO].

Offence and penalty for breach

§ Where an employer or occupier without reasonable excuse breaches a suspension

notice commits an offence and is liable upon conviction to payment of a fine of
HK$500,000 and imprisonment of 12 months and a further fine of HK$50,000 for each
day or part day during which the employer or occupier knowingly and intentionally
continues the breach.

Reporting obligations under the OSHO

§ Where an accident occurs at a workplace resulting in the death of or serious bodily

injury to an employee, the person responsible for the workplace must notify an
occupational safety officer within 24 hours of the accident [s 13 of the OSHO].

§ An occupier of a workplace also has a duty to report any dangerous occurrence (as
defined at Schedule 1 to the OSHO) at the workplace to an occupational safety officer
within 24 hours of the dangerous occurrence [s 14 of the OSHO].

§ If such notice is not contained in a written report indicating the particulars of the accident
and the parties concerned, the person responsible for the workplace is further obliged to
report the accident in writing within 7 days and such report must indicate the particulars
of the accident and specify the victim, the employer and/or occupier.

§ Should the victim of the accident die after the accident is reported, the person
responsible for the workplace is to report the death to an occupational safety office and
the police (at the station nearest the workplace) within 24 hours of becoming aware of
the death.

Offence and penalty for breach

§ Where a person responsible for a workplace or an occupier of the workplace fails to

comply with s 13 of the OSHO reporting obligations will be guilty of an offence and upon
conviction subject to payment of a fine at level 5.

Inquiries

§ Whenever an accident or dangerous occurrence occurs in a workplace, the

Commissioner may arrange for an inquiry to be held by an occupational safety officer to
determine the causes and circumstances of the accident.

§ Inquiry is conducted in an informal manner and culminates in a written report to the

Commissioner.

22
§ Where formal inquiry becomes necessary witnesses and parties may be examined
under oath, and witnesses may be directed to attend and give evidence and produce
documents and other material evidence.

Offence and penalty for breach

§ A person commits an offence under s 17 where they:

– without reasonable excuse, fails to attend to give evidence or produce

documents or other material evidence at an inquiry after being required to
do so; or

– on attending the inquiry:

– refuses to answer a question put to the person or to produce a document

or other material evidence that is in the possession or under the control of
the person; or

– in answer to a question put to the person, provides information that is to

the person’s knowledge false or misleading; or

– produces a document or other material evidence that is to the person’s

knowledge false or misleading,

§ Upon conviction, payment of a fine at level 5 and imprisonment for 3 months.

Occupational Safety and Health Regulation (Cap 509A)

§ The OSHR sets out further duties and obligations for the person who is responsible for a
workplace. The responsible person is to ensure the following as far as practicable:

– That the plant is safe and without risks to those who may use it

o Where a person fails to comply with this duty, they commit an offence
and are liable to payment of a fine at level 5 upon conviction

– Guarding of dangerous parts of plant and equipment and the fencing of

dangerous parts of the workplace

o Where a person fails to comply with this duty, they commit an offence
and are liable to payment of a fine at level 5 upon conviction

– Young persons do not clean the plant when dangerous parts are in motion

o Where a person fails to comply with this duty, they commit an offence
and are liable to payment of a fine at level 5 upon conviction

– That dangerous areas are fenced

23
 o Where a person responsible for a workplace without reasonable
excuse breaches this requirement, they commit an offence and are
liable upon conviction to payment of a fine of HK$200,000

o Where the offence is done intentionally, knowingly or recklessly, the

court can assess a sentence of imprisonment of 12 months in lieu of
payment of a fine

– That egress and escape from the workplace are unlocked, unobstructed
and easily opened

o Where a person responsible for a workplace without reasonable

excuse breaches this requirement, they commit an offence and are
liable upon conviction to payment of a fine of HK$200,000.

o Where the offence is done intentionally, knowingly or recklessly, the

court can impose the fee and assess a sentence of imprisonment of
up to 6 months

– Workplace environment control is ensured including clearance of debris,

adequate lighting and draining of wet floors

o Where a person fails to comply with this duty, they commit an offence
and are liable to payment of a fine at level 5 upon conviction

– Hygiene at the workplace is maintained including drinking water and

washing and toilet facilities

o Where a person fails to comply with this duty, they commit an offence
and are liable to payment of a fine at level 3 upon conviction

– Ready availability of first aid facilities and trained staff

o Where a person fails to comply with this duty, they commit an offence
and are liable to payment of a fine at level 5 upon conviction

– To make preliminary assessment of risks

o Where a person fails to comply with this duty, they commit an offence
and are liable to payment of a fine of HK$200,000 upon conviction

– To avoid the need for employees to carry out manual handling operations
that may create a health and safety risk

o Where a person fails to comply with this duty, they commit an offence
and are liable to payment of a fine of HK$200,000 upon conviction

24
The Occupational Safety and Health (Display Screen Equipment) Regulation (Cap 509B)

§ Applies to any workstation in a workplace that is provided by a person responsible for

the workplace to be used or normally used by an employee who, by reason of the nature
of his work, is required to use display screen equipment for a prolonged period; almost
every day.

§ Requires the person responsible for a workplace to conduct a risk assessment of a

workstation before it can be used, and for a record to be kept of the risk assessment.

§ The person responsible for a workplace must take steps to reduce any risks identified in
a risk assessment to the lowest extent as is reasonably practicable.

Offence and penalty

§ Fine at level 5:

– A failure to comply with section 4(1), (2), (4), (5) or (6)(b), 5, 6 or 7

– An employer who fails to comply with section 8

– The above offences are strict liability offences

§ Fine at level 3:

– A user who fails to comply with section 9

25