FACTORIES AND INDUSTRIAL UNDERTAKINGS ORDINANCE
FACTORIES AND INDUSTRIAL UNDERTAKINGS ORDINANCE
(CHAPTER 59)
CONTENTS
Section
1. Short title
2. Interpretation
3. Appointment of Commissioner and other officers
4. Powers of officers
5. Duty of public officers not to disclose source of complaint, etc.
6. Employment not to be terminated, etc. by reason of fact that employee
has given evidence in proceedings under Ordinance, etc.
6A. General duties of a proprietor
6B. General duties of persons employed
6C. Meaning of "at work"
7. Power of Commissioner for Labour to make regulations, etc.
8. Governor in Council may amend the Schedules
9. Notification of workplaces
9A. Prohibition notices
10. Offences and penalties
11. Power to make orders as to dangerous conditions and practices
11A. Inquiry by chief factory inspector in case of accident
11B. Power of Commissioner or deputy commissioner to hold formal inquiry
11C. Saving
12. Continuing offences
13. Liability of proprietor
14. Liability of directors, partners, etc.
14A. Protection of public officers
15. Procedure
16. Presumptions
17. Prosecution of offences
18. Onus of proving limits of what is practicable, etc.
19. Civil liability
First Schedule Dangerous trades
Second Schedule Scheduled trades
Third Schedule Specified structures and works
To amend the law relating to factories and industrial undertakings and to
the employment of women, young persons and children therein.
[29 September 1955]
Whole Document
1. Short title
This Ordinance may be cited as the Factories and Industrial Undertakings
Ordinance.
2. Interpretation
(1) In this Ordinance, unless the context otherwise requires-
"bodily injury" includes injury to health;
"child" has the meaning assigned to it in the Employment Ordinance (Cap.
57); (Replaced 55 of 1979 s. 2)
"Commissioner" means the Commissioner for Labour appointed under section
3, and, except where the expression "Commissioner for Labour" is used,
includes any deputy commissioner, any assistant commissioner and any
person appointed as a senior labour officer, a labour officer, an
occupational health consultant, a senior occupational health officer, an
occupational health officer, an occupational hygienist, a chief factory
inspector, a deputy chief factory inspector, a superintendent of factory
inspectors or a divisional factory inspector; (Replaced 72 of 1970 s. 2.
Amended 73 of 1977 s. 2; L. N. 248 of 1982; 37 of 1983 s. 2) "construction
work" means-
(a) 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;
(b) 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;
(c) the use of machinery, plant, tools, gear, and materials in connexion
with any operation referred to in paragraph (a) or (b); (Added 52 of 1973
s. 2)
"container" means an article of transport equipment-
(a) of a permanent character and accordingly strong enough to be suitable
for repeated use;
(b) specially designed to facilitate the transport of goods, by one or
more modes of transport, without intermediate reloading;
(c) designed to be secured or readily handled or both and having corner
fittings for these purposes; and
(d) of a size such that the area enclosed by the 4 outer bottom corners is
either-
(i) at least 14 square metres; or
(ii) at least 7 square metres if it is fitted with top corner fittings;
(Added 32 of 1992 s. 2)
"contractor", in relation to construction work, means any person or firm
engaged in carrying out construction work by way of trade or business,
either on his own account or pursuant to a contract or arrangement entered
into with another person, including the Crown or any public body; (Added
52 of 1973 s. 2)
"corner fittings" means an arrangement of apertures and faces either at
the top or at the bottom or both at the top and the bottom of a container
for the purposes of handling, stacking and securing or any of these
purposes; (Added 32 of 1992 s. 2)
"dangerous trade" means any trade, process or occupation specified in the
First Schedule;
"factory" means 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-
(Amended 4 of 1969 s. 2)
(a) any machinery other than machinery worked entirely by hand is used; or
(b) 20 or more persons are employed in manual labour; (Replaced 37 of 1983
s. 2)
"industrial undertaking" includes-
(a) any factory;
(b) any mine or quarry; (Amended 4 of 1969 s. 2)
(c) 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;
(d) the generation, transformation, and transmission or electricity or
motive power of any kind;
(e) any construction work; (Replaced 52 of 1973 s. 2)
(f) the loading, unloading, or handling of goods or cargo at any dock,
quay, wharf, warehouse or airport; (Replaced 52 of 1973s. 2 Amended 73 of
1977 s. 2)
(fa) the loading, unloading, handling, stacking, unstacking,
storing, keeping or maintaining of containers; (Added 32 of 1992 s. 2) (g)
the carriage of coal, building materials, or debris; (Added 52 of 1973 s.
2)
(h) the transport of passengers or goods by road, rail, cableway or aerial
ropeway; (Replaced 19 of 1976 s. 32. Amended 77 of 1990 s. 2)
(ha) the preparation of food for consumption and sale on the premises
where it is prepared; (Added 77 of 1990 s. 2)
(i) 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; (Added 37 of 1978 s. 2)
"inspector" means any person appointed under section 3 as chief factory
inspector, a deputy chief factory inspector, a superintendent of factory
inspectors, a divisional factory inspector, a factory or an assistant
factory inspector, a chief labour inspector, a senior labour inspector or
a labour inspector; (Replaced 10 of 1965 s. 2. Amended 73 of 1977 s. 2; 37
of 1983 s. 2)
"mine" means any works or system of works for the extraction of minerals
from the earth; (Replaced 4 of 1969 s. 2)
"mineral" includes-
(a) metalliferous ores and other substances in their natural state which
are obtainable only by mining or in the course of prospecting operations;
(b) metalliferous ores and other substances in their natural state mined
or obtained in the course of prospecting operations;
(c) the valuable parts of such ores or other substances when
unmanufactured;
(d) the product of treating or dressing such ores or other substances for
marketing or export; and
(e) kaolin, but does not include-
(i) any clay other than kaolin;
(ii) granite, porphyry, limestone or sand;
(iii) any common mineral substance which the Governor by notice in the
Gazette under the Mining Ordinance (Cap. 285) has declared not to be a
mineral for the purposes of the provisions of that Ordinance other than
section 3 thereof, or
(iv) any mineral oil; (Added 4 of 1969 s. 2)
"notifiable workplace" means-
(a) any factory, mine or quarry; and
(b) any premises or place in which a dangerous trade or scheduled trade is
carried on or is proposed to be carried on,
but does not include a construction site within the meaning of the
Construction Sites (Safety) Regulations (Cap. 59 sub. leg.); (Added 50 of
1985 s. 2) "prohibition notice" means a notice issued under section 9A
(1); (Added 50 of 1985 s. 2)
"proprietor" in relation to any industrial
undertaking or notifiable workplace includes 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; (Amended 50 of
1985 s. 2; 71 of 1989 s. 2)
"quarry" means any works or system of works the principal purpose of which
is to extract from the earth for commercial purposes any granite, porphyry
or limestone; (Added 4 of 1969 s. 2) "scheduled trade" means any trade,
process or occupation specified in the Second Schedule;
"young person" has the meaning assigned to it in the Employment Ordinance
(Cap. 57). (Replaced 55 of 1979 s. 2)
(2) A woman, young person or child who works in an industrial undertaking,
whether for wages or not, either in a process or in cleaning any part of
the industrial undertaking used for any process, or in cleaning or oiling
any part of the machinery or plant, or in any other kind of work
whatsoever incidental to or connected with the process, or connected with
the article made or otherwise the subject of the process therein, shall be
deemed to be employed therein for the purposes of this Ordinance or any
proceedings thereunder. (Added 51 of 1961 s. 2)
(3) None of the provisions of this Ordinance shall apply to- (Amended 73
of 1977 s. 2; 11 of 1980 s. 2)
(a) any undertaking which is not carried on by way of trade or for
purposes of gain; or
(b) any agricultural operation. (Amended 77 of 1990
s. 2)
(c) (Repealed 77 of 1990 s. 2)
(Amended 50 of 1985 s. 2)
3. Appointment of Commissioner and other officers
The Governor may appoint a Commissioner for Labour, deputy commissioners
for labour, assistant commissioners for labour, senior labour officers,
labour officers, assistant labour officers, occupational health
consultants, senior occupational health officers, occupational health
officers, assistant occupational health officers, occupational hygienists,
assistant occupational hygienists, a chief factory inspector, deputy chief
factory inspectors, superintendents of factory inspectors, divisional
factory inspectors, factory or assistant factory inspectors, chief labour
inspectors, senior labour inspectors and labour inspectors and such other
officers as he may consider necessary for carrying out the purpose of this
Ordinance.
(Replaced 10 of 1965 s. 3. Amended 4 of 1969 s. 3; 72 of 1970 s. 3; 73 of
1977 s. 3; L.N. 248 of 1982; 37 of 1983 s. 3; 71 of 1989 s. 3)
4. Powers of officers
(1) The Commissioner and any assistant labour or occupational health
officer appointed under section 3, any occupational hygienist, any
inspector, and any other officer authorized in writing generally or
particularly by the Commissioner for Labour shall have the following
powers-(Replaced 10 of 1965 s. 4. Amended 73 of 1977 s. 4; 71 of 1989 s.
4)
(a) to enter, inspect and examine at all reasonable times, by day and
night, any premises or place in which he knows or has reasonable cause to
believe that an industrial undertaking is being carried on;
(b) (Repealed 73 of 1977 s. 4)
(c) to require the production of any register or other document required
to be kept under this Ordinance and inspect, examine and copy the same;
(d) to make such examination and inquiry as may be necessary to ascertain
whether the requirements of this Ordinance are complied with, and seize
anything which may appear to be evidence of an offence against this
Ordinance;
(e) to examine, either alone or in the presence of any other person, as he
thinks fit, respecting matters under this Ordinance, any person whom he
finds in any industrial undertaking or whom he has reasonable cause to
believe has been within the preceding 2 months employed in any industrial
undertaking, or require any such person to be so examined and to sign a
declaration of the truth of the matters respecting which he has been so
examined; (Amended 4 of 1969 s. 4)
(f) to require any person who employs or has employed any woman, young
person or child in an industrial undertaking or any agent or servant of
any such employer to give to him all information in the possession of such
person, agent or servant with reference to such woman, young person or
child and to the labour conditions and treatment of every woman, young
person and child employed by such employer;
(g) to remove and detain for inquiries in a place of refuge appointed
under any Ordinance for the time being in force relating to women, young
persons or children any young person or child whom he finds in any place
in or in respect of which he has reasonable cause to suspect that an
offence against this Ordinance has been committed;
(h) to require the
posting up, in such place and manner and for such period as he may direct,
of any notice in connexion with the provisions of this Ordinance or any
matter related to the manufacture carried out, or machinery, plant,
process or persons employed in any industrial undertaking; and (Amended 11
of 1980 s. 3)
(i) any other powers which may be conferred by any regulation made under
this Ordinance.
(2) Any Health Officer, any officer of the Fire Services
Department with the written authority of the Director of Fire Services and
any officer specially authorized by the Commissioner for Labour may,
subject to such directions as the Commissioner for Labour may impose, at
any time enter and inspect any industrial undertaking for the purpose of
ascertaining whether the requirements of this Ordinance are complied with.
(Amended 11 of 1980 s. 3)
(i) any other powers which may be conferred by any regulation made under
this Ordinance.
(2) Any Health Officer, any officer of the Fire Services
Department with the write authority of the Director of Fire Services and
any officer specially authorized by the Commissioner for Labour may,
subject to such directions as the Commissioner for Labour may impose, at
any time enter and inspect any industrial undertaking for the purpose of
ascertaining whether the requirements of this Ordinance are complied with.
(Amended 42 of 1961 s. 2; 4 of 1969 s. 4)
(2A) An officer exercising any power conferred on him by subsection (1)
may take with him any person, whether a public officer or not, whom he may
reasonably need to assist him in carrying out his duties under this
Ordinance and in particular may , for his assistance, take persons who
have been engaged by the Commissioner for Labour, on account of their
special expertise, to advise the Commissioner on the safety and health of
persons employed in industrial undertakings. (Added 73 of 1977 s. 4)
(2B) A person who accompanies an officer pursuant to subsection (2A)-
(a) may give to the officer such assistance in the exercise of any power
conferred on him by subsection (1) as the officer may reasonably require;
(b) shall be deemed to be a public officer for the purposes of sections 5
and 6. (Added 73 of 1977 s. 4)
(3) The powers conferred by this Ordinance on any officer shall be in
addition to and not in substitution for any other powers which such
officer may possess.
5. Duty of public officers not to disclose source of complaint, etc.
(1) Save as provided in subsection (4), no public officer shall disclose
to any person, other than another public officer in the course of official
duty, the name or identity of any person who has made a complaint alleging
a contravention of any of the provisions of this Ordinance or as a result
of which a contravention of any such provision has come to his notice or
to the notice of any other public officer. (Amended 11 of 1980 s. 4)
(2) No public officer shall disclose to the proprietor of an industrial
undertaking or his representative or to any other employer who is carrying
on business in the industrial undertaking or his representative that a
visit to the industrial undertaking was made in consequence of the receipt
of any such complaint as is referred to in subsection (1).
(3) Save as provided in subsection (4), where, arising out of, or in
connexion with, the enforcement of any of the provisions of this
Ordinance, any manufacturing or commercial secret or any working process
comes to the knowledge of a public officer, such officer shall not at any
time and notwithstanding that he is no longer a public officer disclose
such secret or process to any person.
(4) Where in any proceedings a court or a magistrate considers that
justice so requires, the court or magistrate may order the disclosure of
the name or identity of any person who has made any such complaint as is
referred to in subsection (1) or the disclosure of any such secret or
process as is referred to in subsection (3).
(Added 51 of 1961 s. 3)
6. Employment not to be terminated, etc. by reason of fact that employee
has given evidence in proceedings under Ordinance, etc.
No employer shall terminate, or threaten to terminate, the employment of,
or in any way discriminate against, any of his employees by reason of the
fact that the employee has-
(a) given evidence, or agreed to give evidence, in any proceeding for the
enforcement of any of the provisions of this Ordinance; or
(b) given information to a public officer in any inquiry made by such
officer for the purposes of or in connexion with the enforcement of any of
the provisions of this Ordinance.
(Added 51 of 1961 s. 3. Amended 4 of 1969 s. 5)
6A. General duties of a proprietor
(1) It shall be the duty of every proprietor of an industrial undertaking
to ensure, so far as is reasonably practicable, the health and safety at
work of all persons employed by him at the industrial undertaking.
(2) Without prejudice to the generality of a proprietor's duty under
subsection (1), the matters to which that duty extends include in
particular-
(a) the provision and maintenance of plant and systems of work that are,
so far as is reasonably practicable, safe and without risks to health; (b)
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;
(c) the 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;
(d) 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 maintenance of means of access to and egress from it that
are safe and without such risks; and
(e) the 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.
(3) Subject to subsection (4), a proprietor of an industrial undertaking
who contravenes this section commits an offence and is liable to a fine of
$ 30,000.
(4) A proprietor of an industrial undertaking who contravenes this section
wilfully and without reasonable excuse commits an offence and is liable to
a fine of $ 30,000 and to imprisonment for 6 months.
(Added 71 of 1989 s. 5)
6B. General duties of persons employed
(1) It shall be the duty of every person employed at an industrial
undertaking while at work-
(a) to take reasonable care for the health and safety of himself and of
other persons who may be affected by his acts or omissions at work; and
(b) as regards any duty or requirement imposed on a proprietor of the
industrial undertaking or on any other person by this Ordinance for
securing the health and safety of persons employed at the industrial
undertaking, to co-operate with him so far as is necessary to enable that
duty or requirement to be performed or complied with.
(2) A person who
contravenes subsection (1) commits an offence and is liable to a fine of
$ 10,000.
(3) A person employed at an industrial undertaking who wilfully and
without reasonable excuse does anything while at work likely to endanger
himself or other persons commits an offence and is liable to a fine of
$ 30,000 and to imprisonment for 6 months. (Added 71 of 1989 s. 5)
6C. Meaning of "at work"
For the purposes of sections 6A and 6B, a person is at work throughout the
time when he is in the course of employment, but not otherwise.
(Added 71 of 1989 s. 5)
7. Power of Commissioner for Labour to make regulations, etc.
(1) The Commissioner for Labour may in respect of industrial undertakings
by regulation prescribe or provide for-
(a) prohibiting or controlling the employment of all persons or any class
of persons in dangerous trades or scheduled trades;
(b) prohibiting or controlling the employment of women, young persons and
children in industrial undertakings, and requiring registers to be kept of
women, young persons and children employed in industrial undertakings; (c)
imposing obligations for securing compliance with the provisions of this
Ordinance upon persons who employ women, young persons or children in
industrial undertakings and upon the agents and servants of such persons;
(d) defining the duties and powers of all officers appointed under section
3; (Amended 10 of 1965 s. 5)
(e) exempting any industrial undertaking from the operation of this
Ordinance or any part thereof;
(f) the forms to be used for the purposes of this Ordinance and the manner
of publishing such forms; (Replaced 50 of 1985 s. 3)
(g) means of securing hygienic conditions;
(h) means of ensuring the safety of persons in industrial undertakings and
of relieving persons suffering from the effects of accidents in industrial
undertakings; (Replaced 4 of 1969 s. 6)
(i) means of securing the removal of any danger or defect;
(j) requiring notifications to be made in relation to accidents and such
dangerous occurrences as may be specified in the regulations;
(k) precautions to be taken against fire and providing for means of escape
from fire;
(l) the taking for purposes of analysis of samples of materials
or substances used or handled;
(m) requiring notifications to be made in relation to the occurrence
amongst person who have been or are employed in industrial undertakings of
such diseases as may be specified in such regulations;
(n) requiring the medical inspection by a Health Officer or by a medical
practitioner employed by the proprietor of the industrial undertaking
concerned of any person or of any class of person employed or intended to
be employed in any industrial undertaking, and the keeping of records of
any such inspections; (Amended 4 of 1969 s. 6)
(o) imposing duties on
proprietors, contractors and persons employed; (Amended 52 of 1973 s. 3)
(p) generally, carrying into effect the provisions of this Ordinance.
(2) (a) Where the Commissioner for Labour is satisfied that any
manufacture, machinery, plant, process or description of manual labour,
used in industrial undertakings is of such a nature as to cause risk of
bodily injury to persons employed in connexion therewith, or any class of
those persons, he may, without prejudice to the generality of the power to
make regulations under subsection (1), make such special regulations as
appear to him to be reasonably practicable and to meet the necessity of
the case and in particular such special regulations may-
(i) prohibit or control the employment of all persons or any class of
persons in connexion with any manufacture, machinery, plant, process, or
description of manual labour; or
(ii) prohibit or control the use of any material or process; and may
impose duties on proprietors, contractors, employed persons and other
persons. (Amended 52 of 1973 s. 3)
(b) Special regulations so made may
apply to all industrial undertakings in which the manufacture, machinery,
plant, process, or description of manual labour is used or to any
specified class or description of such undertaking, and may provide for
the exemption of any specified class or description of undertaking either
absolutely or subject to conditions.
(3) All regulations made by the Commissioner for Labour shall be submitted
to the Governor, and shall be subject to the approval of the Legislative
Council.
(4) The Commissioner for Labour in such cases as he shall think
fit may, for such period and subject to such conditions as he may specify,
exempt any industrial undertaking from any regulation made under this
Ordinance and the Commissioner for Labour, or any officer authorized in
writing by him, may order the adoption of special precautions in addition
to any precautions required by any regulation made under this Ordinance:
(Amended 7 of 1959 s. 2; 4 of 1969 s. 6)
Provided that any person aggrieved by such exemption or order may within
14 days of being notified of such exemption or order appeal by way of
petition to the Governor in Council, whose decision shall be final.
(Replaced 4 of 1969 s. 6)
(5) Regulations made under this section may provide that contravention of
specified provisions of such regulations shall be an offence and may
provide penalties therefor: Provided that no penalty so provided shall
exceed a fine of $ 50,000 and imprisonment for 12 months. (Amended 52 of
1973 s. 3; 57 of 1980 s. 2; 71 of 1989 s. 6)
8. Governor in Council may amend the Schedules
The Governor in Council may by order amend the First, Second or Third
Schedule. (Replaced 52 of 1973 s. 4. Amended 7 of 1976 s. 3; 50 of 1985
s. 4)
9. Notification of workplaces
(1) The person having the management or control of a notifiable workplace
shall, before the first occasion on which any industrial process is
commenced or any industrial operation is carried on in the notifiable
workplace, notify the Commissioner for Labour in the prescribed form of
such particulars relating to the workplace and the industrial process or
industrial operation proposed to be carried on there as may be specified
in the prescribed form.
(2) The person having the management or control of a notifiable workplace
in respect of which any change in the location or name of the notifiable
workplace or in the nature of the industrial process or industrial
operation carried on there is proposed shall notify the Commissioner for
Labour in the prescribed form of the proposed change before it takes
effect.
(3) Where there has been a change in the identity of the person having the
management or control of a notifiable workplace, that person shall notify
the Commissioner for Labour of the fact of such change within 21 days
after it takes effect. (Replaced 50 of 1985 s. 5)
9A. Prohibition notices
(1) If at any time the Commissioner for Labour considers that any
notifiable workplace, whether a notifiable workplace which has been
notified to him under section 9 or not, is not suitable-
(a) for use as a factory, mine or quarry; or
(b) for the carrying on therein of any dangerous trade or scheduled trade;
or
(c) for the carrying on therein of any industrial process or industrial
operation or any part thereof,
he may issue to the proprietor of the notifiable workplace a notice in the
prescribed form prohibiting-
(i) its use as a factory, mine or quarry;
(ii) the carrying on therein of any dangerous trade or scheduled trade; or
(iii) the carrying on therein of such industrial process or industrial
operation, or such part thereof, as may be specified in the notice.
(2)Upon issuing a prohibition notice in respect of any notifiable
workplace the Commissioner for Labour shall on the notice state the
reasons for the issue of the notice and specify a date by which it is to
be complied with.
(3) Where at any time after issuing a prohibition notice in respect of a
notifiable workplace the Commissioner for Labour is satisfied that the
matter leading to the issuing of the notice has been remedied, he may, and
if so requested by the proprietor of the notifiable workplace shall,
cancel the prohibition notice, but may upon doing so give directions in
writing to the proprietor of the notifiable workplace in respect of any
matter which led to the issuing of the notice.
(4) Any proprietor of a notifiable workplace who is aggrieved by-
(a) the issue of a prohibition notice in respect of that notifiable
workplace;
(b) a refusal by the Commissioner for Labour to cancel a prohibition
notice; or
(c) the giving of any direction upon the cancellation of a prohibition
notice, may, within 14 days of being notified of such issue, refusal or
direction, appeal against it by way of petition to the Governor in
Council, whose decision thereon shall be final.
(5) In this section-
(a) "Commissioner for Labour" includes any person authorized by the
Commissioner for Labour in writing for the purposes of this section;
(b) "suitable" means,-
(i) in the case of a notifiable workplace designed and constructed for
industrial use, suitable in respect of the safety, health and welfare of
persons employed therein;
(ii) in the case of a notifiable workplace not
so designed and constructed, suitable in respect of the safety, health and
welfare of persons generally other than in respect of noise affecting
persons not employed therein. (Amended 75 of 1988 s. 40) (Added 50 of 1985
s. 5)
10. Offences and penalties
(1) A person who contravenes section 9 commits an offence and is liable to
a fine of $ 10,000.(Replaced 50 of 1985 s. 6)
(1A) Subject to subsection (1C) a proprietor of a notifiable workplace who
fails to comply with the terms of a prohibition notice relating to that
notifiable workplace within the period specified in the prohibition notice
commits an offence and is liable to a fine of $ 30,000 and to imprisonment
for 6 months. (Replaced 50 of 1985 s. 6. Amended 71 of 1989 s. 7)
(1B) Where a proprietor has appealed to the Governor in Council under
section 9A (4), the period for compliance with the terms of a prohibition
notice shall be as specified in the decision on the appeal or, if it is
not so specified, shall run from the date when the proprietor is notified
of the result of the appeal. (Added 50 of 1985 s. 6)
(1C) Where under
section 9A (3) the Commissioner for Labour has upon cancelling a
prohibition notice issued in respect of a notifiable workplace given any
directions, a proprietor who carries on an industrial process or
industrial operation in the notifiable workplace without complying with
those directions commits an offence and is liable to a fine of $ 30,000
and to imprisonment for 6 months. (Added 50 of 1985 s. 6. Amended 71 of
1989 s. 7)
(2) Any person who fails to comply with any order made under section 7 (4)
or who fails to comply with any condition imposed on the granting
thereunder of any exemption shall be guilty of an offence and shall be
liable to a fine of $ 30,000 and to imprisonment for 6 months. (Amended 71
of 1989 s. 7)
(3) Any person who-
(a) fails to comply with a requirement made by any officer under section 4
(1); or
(b) wilfully or recklessly gives false information or withholds
information as to any of the matters in respect of which information is
required to be given under section 4 (1); or
(c) obstructs or delays any officer in the exercise of any of the powers
conferred upon him by section 4,
shall be guilty of an offence and shall be liable to a fine of $ 20,000.
(4) Any person who contravenes any of the provisions of section 5 (1), (2)
or (3) shall be guilty of an offence and shall be liable to a fine of
$10,000.
(4A) Any person who contravenes section 6 commits an offence and is liable
on conviction to a fine of $ 20,000. (Added 30 of 1992 s. 2)
(5) The proprietor of a notifiable workplace shall be deemed to have
complied with section 9 (1) if before the commencement [1] of the
Factories and Industrial Undertakings (Amendment) Ordinance 1985 (50 of
1985) the workplace was registered or provisionally registered under
repealed section 9 (5). (Added 50 of 1985 s. 6)
(6) The proprietor of a notifiable workplace which before the commencement
of Factories and Industrial Undertakings (Amendment) Ordinance 1985 (50 of
1985) was a registrable workplace under repealed section 9 (1) but which
was not registered or provisionally registered under repealed section 9
(5) may be exempted from the requirements of section 9 (1) by the
Commissioner for Labour by notice in writing not later than 6 months after
the commencement of that Ordinance.(Added 50 of 1985 s. 6)
(7) In this section "repealed" means repealed by section 5 of the
Factories and Industrial Undertakings (Amendment) Ordinance 1985 (50 of
1985). (Added 50 of 1985 s. 6) (Replaced 19 of 1963 s. 3. Amended 4 of
1969 s. 8; 37 of 1983 s. 5)
11. Power to make orders as to dangerous conditions and practices
(1) Notwithstanding the provisions of section 9A, if on complaint by an
inspector a magistrate is satisfied either-(Amended 50 of 1985 s. 7)
(a) that any part of the ways, works, machinery or plant used in an
industrial undertaking is in such condition or so constructed or so placed
that it cannot be used without risk of bodily injury; or
(b) that any process or work is carried on or anything is or has been done
in any industrial undertaking in such a manner as to cause risk or bodily
injury, the magistrate shall, by order, as the case may require-
(i) prohibit the use of that part of the ways, works, machinery or plant,
or, if it is capable of repair or alteration, prohibit its use until it is
duly repaired or altered;
(ii) require the proprietor to take such steps
as may be specified in the order for remedying the danger complained of;
or
(iii) direct that such machinery or plant shall be secured by a seal, lock
or other device by an inspector in such manner as the inspector may think
necessary to prevent the operation of the machinery or plant without the
seal, lock or other device being broken or removed, for such period as the
magistrate may specify in such order.
(2) Where a complaint is or has
been made under subsection (1) the magistrate may, on application ex parte
by an inspector, and on receiving evidence that the use of any such part
of the ways, works, machinery or plant, or, as the case may be, the
carrying on of any process or work or the doing of anything in such a
manner as aforesaid, involves imminent risk of serious bodily injury, make
an interim order prohibiting either absolutely or subject to conditions,
the use, carrying on or doing thereof until the earliest opportunity for
hearing and determining the complaint and may include in such interim
order a direction that any machinery or plant located in such industrial
undertaking shall be secured by a seal, lock or other device by an
inspector in such manner as the inspector may think necessary to prevent
the operation of the machinery or plant without the seal, lock or other
device being broken or removed, and where such an interim order or
direction has been made, the magistrate may at any time rescind or vary
the interim order or direction. (Amended 4 of 1969 s. 9)
(3) In the event of any contravention of or failure to comply with any
order made by a magistrate under this section or of any condition or
direction contained in such order the proprietor of the industrial
undertaking in respect of which the order is made shall be guilty of an
offence and shall be liable to a fine of $ 50,000 and to imprisonment for
12 months. (Amended 57 of 1980 s. 3; 71 of 1989 s. 8) (Added 19 of 1963 s.
8)
11A. Inquiry by chief factory inspector in case of accident
(1) Whenever an accident whether or not involving injury to any person
occurs in an industrial undertaking, the Commissioner for Labour, if he is
of the opinion that an inquiry into the cause and circumstances of the
accident should be held, shall direct the chief factory inspector to hold
such inquiry.
(2) An inquiry by the chief factory inspector shall be held informally in
the first instance in such manner as the chief factory inspector may think
fit and the chief factory inspector shall record his findings in writing
and submit the record to the Commissioner for Labour.
(3) Where the chief factory inspector is of the opinion that an inquiry by
him under this section is likely to be frustrated or delayed owing to the
unwillingness of any person to provide any information relating to the
accident or to produce books or records for inspection or to answer any
question, or for any other cause, the chief factory inspector shall submit
a statement in writing to the Commissioner for Labour to that effect.
(Added 37 of 1983 s. 6)
11B. Power of Commissioner or deputy commissioner to hold formal inquiry
(1) Where a statement is submitted to the Commissioner for Labour under
section 11A (3) in respect of any accident, the Commissioner for Labour or
a deputy commissioner for labour may hold an inquiry into the cause and
circumstances of the accident.
(2) The Commissioner for Labour or a
deputy commissioner for labour, for the purposes of holding an inquiry-
(a) shall have all the powers of a magistrate to summon witnesses, to call
for the production of books and documents and examine witnesses and other
persons concerned on oath; and
(b) may, on application made to him in that behalf, hold the inquiry
otherwise than in public to such extent as he considers necessary for the
purpose of hearing evidence, the giving of which is in his opinion likely
to disclose information relating to a trade secret.
(3) Any person summoned to attend before an inquiry held under this
section or to produce books or documents as evidence in the inquiry who
fails to do so, or who refuses to answer any question put to him by or
with the concurrence of the person holding the inquiry, shall be guilty of
an offence and be liable to a fine of $ 10,000 and to imprisonment for 3
months:
Provided that no person shall be bound to incriminate himself, and every
witness shall, in respect of any evidence given by him at such inquiry, be
entitled to the same privileges to which he would be entitled in
proceeding before a magistrate.
(4) Any person who behaves in an
insulting manner or uses any threatening or insulting expression to or in
the presence of the person holding the inquiry commits an offence and is
liable to a fine of $ 5,000 and to imprisonment for 3 months. (Added 37
of 1983 s. 6)
11C. Saving
Any inquiry held by virtue of section 11B shall not derogate in any way
from the powers or jurisdiction exercisable by coroners under the Coroners
Ordinance (Cap. 14). (Added 37 of 1983 s. 6)
12. Continuing offences
Any person guilty of an offence against this Ordinance shall, in addition
to any other penalty prescribed for such offence, be liable to a fine of $
5,000 for every day during the whole or any part of which such offence is
knowingly and wilfully continued. (Amended 52 of 1973 s. 5; 37 of 1983 s.
7)
13. Liability of proprietor
(1) Except as may be otherwise provided by regulations made under this
Ordinance, the proprietor of every industrial undertaking in or in respect
of which any offence against this Ordinance has been committed shall be
guilty of a like offence, and shall be liable to the penalty prescribed
for such offence.
(2) It shall be no defence to a prosecution of the proprietor of an
industrial undertaking for an offence against this Ordinance that the
offence was committed without his knowledge or consent or that the actual
offender has not been convicted of the offence.
(3) Nothing in this section shall apply to an offence under section 6B.
(Added 71 of 1989 s. 9)
14. Liability of directors, partners, etc.
(1) Where the person convicted of an offence against this Ordinance is a
company and it is proved that the offence was committed with the consent
or connivance of, or was attributable to any neglect on the part or, any
director, manager, secretary or other similar officer of the company, the
director, manager, secretary or other similar officer shall be guilty of
the like offence.
(2) Where the person convicted of an offence against this Ordinance is a
firm and it is proved that the offence was committed with the consent or
connivance of, or was attributable to any neglect on the part of, any
partner in the firm or any person concerned in the management of the firm,
the partner or the person concerned in the management of the firm shall be
guilty of the like offence. (Replaced 71 of 1989 s. 10)
14A. Protection of public officers
(1) A public officer is not personally liable in respect of any act or
omission of his if it was done or made by him in the honest belief that it
was required or authorized in the exercise of any function, duty or power
of his under this Ordinance.
(2) The protection conferred on public
officers by subsection (1) in respect of any act or omission shall not in
any way affect any liability of the Crown in tort for that act or
omission.
(Added 71 of 1989 s. 11)
15. Procedure
(1) (a) Any summons relating to an offence against this Ordinance by a
proprietor of an industrial undertaking may be served by leaving a copy of
the summons with some person for him at the industrial undertaking
mentioned in the summons.
(b) Any such summons may be addressed to the proprietor of an industrial
undertaking without specifying the name of the proprietor.
(c) If on the hearing of any such summons the offence is proved to the
satisfaction of the magistrate, he may, in addition to any other power
which he may possess, order that any fine imposed, if not duly paid, shall
be recovered by distress and sale of the machinery, goods and chattels
found in the industrial undertaking in question, and the provisions of the
Magistrates Ordinance (Cap. 227) shall apply in the case of such distress
and sale as they apply to any distress and sale under that Ordinance.
(2) Any summons relating to an offence against this Ordinance by a person
employed in an industrial undertaking may be served by leaving a copy of
the summons either with some person for him at his last or most usual
place of abode or with some person for him at the industrial undertaking
mentioned in the summons.
16. Presumptions
In any prosecution under this Ordinance-
(a) if it appears to the magistrate that any person who is alleged in the
charge to have been a young person or child at the date of the alleged
offence was a young person or child at the said date, it shall, until the
contrary is proved, be presumed that such person was a young person or
child at the said date;
(b) if it appears to the magistrate that any young person or child who is
alleged in the charge to have been under any particular age at the date of
the alleged offence was under that particular age at the said date, it
shall, until the contrary is proved, be presumed that the said young
person or child was under the said age at the said date;
(c) if the charge
alleges the contravention of any of the provisions of this Ordinance
prohibiting or controlling the employment of women, young persons or
children and the defendant in such prosecution is the proprietor of the
industrial undertaking in or in respect of which the offence is alleged to
have been committed, it shall, until the contrary is proved, be presumed
that any woman, young person or child to whom the charge relates and who
was employed in the industrial undertaking on the day on which the offence
is alleged to have been committed was employed therein on that day by such
proprietor.(Added 51 of 1961 s. 5)
17. Prosecution of offences
(1) Prosecutions for offences against this Ordinance may be brought in the
name of the Commissioner for Labour, and may be commenced and conducted by
any officer of the Labour Department.
(2) Save as is provided in subsection (1), no prosecution for an offence
against this Ordinance shall be commenced without the written consent of
the Commissioner for Labour.
(3) Nothing in this section shall be deemed
to derogate from the powers of the Attorney General in relation to the
prosecution of criminal offences.
18. Onus of proving limits of what is practicable, etc.
(1) In a proceeding for an offence under a provision in this Ordinance
consisting of a failure 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 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.
(2) In a proceeding for an offence
under a provision in this Ordinance consisting of an exemption from
compliance with a duty or requirement to do something where it is
impracticable, not reasonably practicable or rendered impracticable to
comply with that duty or requirement, the onus is on the accused to prove
that it was impracticable or not reasonably practicable to do more than
was in fact done to comply with the duty or requirement.
(3) Subsections (1) and (2) do not apply where the offence is committed on
or before the commencement [1] of this section.
(Added 71 of 1989 s. 12)
19. Civil liability
This Ordinance does not-
(a) confer a right of action in civil proceedings in respect of a failure
to comply with section 6A or 6B; and
(b) affect the extent (if any) to which breach of any other provision is
actionable. (Added 71 of 1989 s. 12)
FIRST SCHEDULE [ss. 2 & 8] DANGEROUS TRADES
1. Boiler chipping.
2. (Repealed L. N. 222 of 1983)
3. The manufacture of glass from basic raw materials. (Replaced L. N. 222
of 1983)
4. Manufacturing processes involving the use of arsenic, lead, manganese,
mercury, phosphorus, or any compound of any of them. (Amended L. N. 222 of
1983)
5. Vermilion manufacture.
6. Chromium plating.
7. The machining or grinding of celluloid or magnesium, or of any article
wholly or partly made of celluloid or magnesium in any manufacturing
process. (Replace L. N. 222 of 1983)
8. The manufacture of hydrochloric, nitric or sulphuric acids.
SECOND SCHEDULE [ss. 2 & 8] SCHEDULED TRADES
1. Any industrial undertaking involving the use of any dangerous goods
specified in Category 5 in the Schedule to the Dangerous Goods
(Classification) Regulations (Cap. 295 sub. leg) and for which a licence
is required under the Dangerous Goods Ordinance (Cap. 295). (Amended L. N.
222 of 1983)
2. Any industrial undertaking involving the use of coal gas.
3. Any industrial undertaking involving the use of electricity as motive
power or for heating or in any electrolytic process, other than
electricity used solely for the ventilation, heating or lighting of a
building.
4. Any industrial undertaking involving the use of any X-ray or
radioactive substance. (Added G. N. A. 62 of 1956)
THIRD SCHEDULE [ss 2 & 8] SPECIFIED STRUCTURES AND WORKS
1. Any building, edifice, wall, fence, or chimney, whether constructed
wholly or partly above or below ground level.
2. Any road, motorway, railway, tramway, cableway, aerial ropeway or
canal. (Amended 19 of 1976 s. 32)
3. Any harbour works, dock, pier, sea defence work, or lighthouse.
4. Any aqueduct, viaduct, bridge, or tunnel.
5. Any sewer, sewage disposal works, or filter bed.
6. Any airport or works connect with air navigation.
7. Any dam, reservoir, well, pipeline, culvert, shaft, or reclamation,
8. Any drainage, irrigation, or river control work.
9. Any water, electrical, gas, telephonic, telegraphic, radio, or
television installation or works, or any other works designed for the
manufacturing or transmission of power or the transmission or reception of
radio or sound waves.
10. Any structure designed for the support of machinery, plant, or power
transmission lines.
(Added 52 of 1973 s. 6)
(4) The Commissioner for Labour in such cases as he shall think
fit may, for such period and subject to such conditions as he may specify,
exempt any industrial undertaking from any regulation made under this
Ordinance and the Commissioner for Labour, or any officer authorized in
writing by him, may order the adoption of special precautions in addition
to any precautions required by any regulation made under this Ordinance:
(Amended 7 of 1959 s. 2; 4 of 1969 s. 6)
Provided that any person aggrieved by such exemption or order may within
14 days of being notified of such exemption or order appeal by way of
petition to the Governor in Council, whose decision shall be final.
(Replaced 4 of 1969 s. 6)
(5) Regulations made under this section may provide that contravention of
specified provisions of such regulations shall be an offence and may
provide penalties therefor: Provided that no penalty so provided shall
exceed a fine of $ 50,000 and imprisonment for 12 months. (Amended 52 of
1973 s. 3; 57 of 1980 s. 2; 71 of 1989 s. 6)
8. Governor in Council may amend the Schedules
The Governor in Council may by order amend the First, Second or Third
Schedule. (Replaced 52 of 1973 s. 4. Amended 7 of 1976 s. 3; 50 of 1985
s. 4)
9. Notification of workplaces
(1) The person having the management or control of a notifiable workplace
shall, before the first occasion on which any industrial process is
commenced or any industrial operation is carried on in the notifiable
workplace, notify the Commissioner for Labour in the prescribed form of
such particulars relating to the workplace and the industrial process or
industrial operation proposed to be carried on there as may be specified
in the prescribed form.
(2) The person having the management or control of a notifiable workplace
in respect of which any change in the location or name of the notifiable
workplace or in the nature of the industrial process or industrial
operation carried on there is proposed shall notify the Commissioner for
Labour in the prescribed form of the proposed change before it takes
effect.
(3) Where there has been a change in the identity of the person having the
management or control of a notifiable workplace, that person shall notify
the Commissioner for Labour of the fact of such change within 21 days
after it takes effect. (Replaced 50 of 1985 s. 5)
9A. Prohibition notices
(1) If at any time the Commissioner for Labour considers that any
notifiable workplace, whether a notifiable workplace which has been
notified to him under section 9 or not, is not suitable-
(a) for use as a factory, mine or quarry; or
(b) for the carrying on therein of any dangerous trade or scheduled trade;
or
(c) for the carrying on therein of any industrial process or industrial
operation or any part thereof,
he may issue to the proprietor of the notifiable workplace a notice in the
prescribed form prohibiting-
(i) its use as a factory, mine or quarry;
(ii) the carrying on therein of any dangerous trade or scheduled trade; or
(iii) the carrying on therein of such industrial process or industrial
operation, or such part thereof, as may be specified in the notice.
(2)Upon issuing a prohibition notice in respect of any notifiable
workplace the Commissioner for Labour shall on the notice state the
reasons for the issue of the notice and specify a date by which it is to
be complied with.
(3) Where at any time after issuing a prohibition notice in respect of a
notifiable workplace the Commissioner for Labour is satisfied that the
matter leading to the issuing of the notice has been remedied, he may, and
if so requested by the proprietor of the notifiable workplace shall,
cancel the prohibition notice, but may upon doing so give directions in
writing to the proprietor of the notifiable workplace in respect of any
matter which led to the issuing of the notice.
(4) Any proprietor of a notifiable workplace who is aggrieved by-
(a) the issue of a prohibition notice in respect of that notifiable
workplace;
(b) a refusal by the Commissioner for Labour to cancel a prohibition
notice; or
(c) the giving of any direction upon the cancellation of a prohibition
notice, may, within 14 days of being notified of such issue, refusal or
direction, appeal against it by way of petition to the Governor in
Council, whose decision thereon shall be final.
(5) In this section-
(a) "Commissioner for Labour" includes any person authorized by the
Commissioner for Labour in writing for the purposes of this section;
(b) "suitable" means,-
(i) in the case of a notifiable workplace designed and constructed for
industrial use, suitable in respect of the safety, health and welfare of
persons employed therein;
(ii) in the case of a notifiable workplace not
so designed and constructed, suitable in respect of the safety, health and
welfare of persons generally other than in respect of noise affecting
persons not employed therein. (Amended 75 of 1988 s. 40) (Added 50 of 1985
s. 5)
10. Offences and penalties
(1) A person who contravenes section 9 commits an offence and is liable to
a fine of $ 10,000.(Replaced 50 of 1985 s. 6)
(1A) Subject to subsection (1C) a proprietor of a notifiable workplace who
fails to comply with the terms of a prohibition notice relating to that
notifiable workplace within the period specified in the prohibition notice
commits an offence and is liable to a fine of $ 30,000 and to imprisonment
for 6 months. (Replaced 50 of 1985 s. 6. Amended 71 of 1989 s. 7)
(1B) Where a proprietor has appealed to the Governor in Council under
section 9A (4), the period for compliance with the terms of a prohibition
notice shall be as specified in the decision on the appeal or, if it is
not so specified, shall run from the date when the proprietor is notified
of the result of the appeal. (Added 50 of 1985 s. 6)
(1C) Where under
section 9A (3) the Commissioner for Labour has upon cancelling a
prohibition notice issued in respect of a notifiable workplace given any
directions, a proprietor who carries on an industrial process or
industrial operation in the notifiable workplace without complying with
those directions commits an offence and is liable to a fine of $ 30,000
and to imprisonment for 6 months. (Added 50 of 1985 s. 6. Amended 71 of
1989 s. 7)
(2) Any person who fails to comply with any order made under section 7 (4)
or who fails to comply with any condition imposed on the granting
thereunder of any exemption shall be guilty of an offence and shall be
liable to a fine of $ 30,000 and to imprisonment for 6 months. (Amended 71
of 1989 s. 7)
(3) Any person who-
(a) fails to comply with a requirement made by any officer under section 4
(1); or
(b) wilfully or recklessly gives false information or withholds
information as to any of the matters in respect of which information is
required to be given under section 4 (1); or
(c) obstructs or delays any officer in the exercise of any of the powers
conferred upon him by section 4,
shall be guilty of an offence and shall be liable to a fine of $ 20,000.
(4) Any person who contravenes any of the provisions of section 5 (1), (2)
or (3) shall be guilty of an offence and shall be liable to a fine of
$10,000.
(4A) Any person who contravenes section 6 commits an offence and is liable
on conviction to a fine of $ 20,000. (Added 30 of 1992 s. 2)
(5) The proprietor of a notifiable workplace shall be deemed to have
complied with section 9 (1) if before the commencement [1] of the
Factories and Industrial Undertakings (Amendment) Ordinance 1985 (50 of
1985) the workplace was registered or provisionally registered under
repealed section 9 (5). (Added 50 of 1985 s. 6)
(6) The proprietor of a notifiable workplace which before the commencement
of Factories and Industrial Undertakings (Amendment) Ordinance 1985 (50 of
1985) was a registrable workplace under repealed section 9 (1) but which
was not registered or provisionally registered under repealed section 9
(5) may be exempted from the requirements of section 9 (1) by the
Commissioner for Labour by notice in writing not later than 6 months after
the commencement of that Ordinance.(Added 50 of 1985 s. 6)
(7) In this section "repealed" means repealed by section 5 of the
Factories and Industrial Undertakings (Amendment) Ordinance 1985 (50 of
1985). (Added 50 of 1985 s. 6) (Replaced 19 of 1963 s. 3. Amended 4 of
1969 s. 8; 37 of 1983 s. 5)
11. Power to make orders as to dangerous conditions and practices
(1) Notwithstanding the provisions of section 9A, if on complaint by an
inspector a magistrate is satisfied either-(Amended 50 of 1985 s. 7)
(a) that any part of the ways, works, machinery or plant used in an
industrial undertaking is in such condition or so constructed or so placed
that it cannot be used without risk of bodily injury; or
(b) that any process or work is carried on or anything is or has been done
in any industrial undertaking in such a manner as to cause risk or bodily
injury, the magistrate shall, by order, as the case may require-
(i) prohibit the use of that part of the ways, works, machinery or plant,
or, if it is capable of repair or alteration, prohibit its use until it is
duly repaired or altered;
(ii) require the proprietor to take such steps
as may be specified in the order for remedying the danger complained of;
or
(iii) direct that such machinery or plant shall be secured by a seal, lock
or other device by an inspector in such manner as the inspector may think
necessary to prevent the operation of the machinery or plant without the
seal, lock or other device being broken or removed, for such period as the
magistrate may specify in such order.
(2) Where a complaint is or has
been made under subsection (1) the magistrate may, on application ex parte
by an inspector, and on receiving evidence that the use of any such part
of the ways, works, machinery or plant, or, as the case may be, the
carrying on of any process or work or the doing of anything in such a
manner as aforesaid, involves imminent risk of serious bodily injury, make
an interim order prohibiting either absolutely or subject to conditions,
the use, carrying on or doing thereof until the earliest opportunity for
hearing and determining the complaint and may include in such interim
order a direction that any machinery or plant located in such industrial
undertaking shall be secured by a seal, lock or other device by an
inspector in such manner as the inspector may think necessary to prevent
the operation of the machinery or plant without the seal, lock or other
device being broken or removed, and where such an interim order or
direction has been made, the magistrate may at any time rescind or vary
the interim order or direction. (Amended 4 of 1969 s. 9)
(3) In the event of any contravention of or failure to comply with any
order made by a magistrate under this section or of any condition or
direction contained in such order the proprietor of the industrial
undertaking in respect of which the order is made shall be guilty of an
offence and shall be liable to a fine of $ 50,000 and to imprisonment for
12 months. (Amended 57 of 1980 s. 3; 71 of 1989 s. 8) (Added 19 of 1963 s.
8)
11A. Inquiry by chief factory inspector in case of accident
(1) Whenever an accident whether or not involving injury to any person
occurs in an industrial undertaking, the Commissioner for Labour, if he is
of the opinion that an inquiry into the cause and circumstances of the
accident should be held, shall direct the chief factory inspector to hold
such inquiry.
(2) An inquiry by the chief factory inspector shall be held informally in
the first instance in such manner as the chief factory inspector may think
fit and the chief factory inspector shall record his findings in writing
and submit the record to the Commissioner for Labour.
(3) Where the chief factory inspector is of the opinion that an inquiry by
him under this section is likely to be frustrated or delayed owing to the
unwillingness of any person to provide any information relating to the
accident or to produce books or records for inspection or to answer any
question, or for any other cause, the chief factory inspector shall submit
a statement in writing to the Commissioner for Labour to that effect.
(Added 37 of 1983 s. 6)
11B. Power of Commissioner or deputy commissioner to hold formal inquiry
(1) Where a statement is submitted to the Commissioner for Labour under
section 11A (3) in respect of any accident, the Commissioner for Labour or
a deputy commissioner for labour may hold an inquiry into the cause and
circumstances of the accident.
(2) The Commissioner for Labour or a
deputy commissioner for labour, for the purposes of holding an inquiry-
(a) shall have all the powers of a magistrate to summon witnesses, to call
for the production of books and documents and examine witnesses and other
persons concerned on oath; and
(b) may, on application made to him in that behalf, hold the inquiry
otherwise than in public to such extent as he considers necessary for the
purpose of hearing evidence, the giving of which is in his opinion likely
to disclose information relating to a trade secret.
(3) Any person summoned to attend before an inquiry held under this
section or to produce books or documents as evidence in the inquiry who
fails to do so, or who refuses to answer any question put to him by or
with the concurrence of the person holding the inquiry, shall be guilty of
an offence and be liable to a fine of $ 10,000 and to imprisonment for 3
months:
Provided that no person shall be bound to incriminate himself, and every
witness shall, in respect of any evidence given by him at such inquiry, be
entitled to the same privileges to which he would be entitled in
proceeding before a magistrate.
(4) Any person who behaves in an
insulting manner or uses any threatening or insulting expression to or in
the presence of the person holding the inquiry commits an offence and is
liable to a fine of $ 5,000 and to imprisonment for 3 months. (Added 37
of 1983 s. 6)
11C. Saving
Any inquiry held by virtue of section 11B shall not derogate in any way
from the powers or jurisdiction exercisable by coroners under the Coroners
Ordinance (Cap. 14). (Added 37 of 1983 s. 6)
12. Continuing offences
Any person guilty of an offence against this Ordinance shall, in addition
to any other penalty prescribed for such offence, be liable to a fine of $
5,000 for every day during the whole or any part of which such offence is
knowingly and wilfully continued. (Amended 52 of 1973 s. 5; 37 of 1983 s.
7)
13. Liability of proprietor
(1) Except as may be otherwise provided by regulations made under this
Ordinance, the proprietor of every industrial undertaking in or in respect
of which any offence against this Ordinance has been committed shall be
guilty of a like offence, and shall be liable to the penalty prescribed
for such offence.
(2) It shall be no defence to a prosecution of the proprietor of an
industrial undertaking for an offence against this Ordinance that the
offence was committed without his knowledge or consent or that the actual
offender has not been convicted of the offence.
(3) Nothing in this section shall apply to an offence under section 6B.
(Added 71 of 1989 s. 9)
14. Liability of directors, partners, etc.
(1) Where the person convicted of an offence against this Ordinance is a
company and it is proved that the offence was committed with the consent
or connivance of, or was attributable to any neglect on the part or, any
director, manager, secretary or other similar officer of the company, the
director, manager, secretary or other similar officer shall be guilty of
the like offence.
(2) Where the person convicted of an offence against this Ordinance is a
firm and it is proved that the offence was committed with the consent or
connivance of, or was attributable to any neglect on the part of, any
partner in the firm or any person concerned in the management of the firm,
the partner or the person concerned in the management of the firm shall be
guilty of the like offence. (Replaced 71 of 1989 s. 10)
14A. Protection of public officers
(1) A public officer is not personally liable in respect of any act or
omission of his if it was done or made by him in the honest belief that it
was required or authorized in the exercise of any function, duty or power
of his under this Ordinance.
(2) The protection conferred on public
officers by subsection (1) in respect of any act or omission shall not in
any way affect any liability of the Crown in tort for that act or
omission.
(Added 71 of 1989 s. 11)
15. Procedure
(1) (a) Any summons relating to an offence against this Ordinance by a
proprietor of an industrial undertaking may be served by leaving a copy of
the summons with some person for him at the industrial undertaking
mentioned in the summons.
(b) Any such summons may be addressed to the proprietor of an industrial
undertaking without specifying the name of the proprietor.
(c) If on the hearing of any such summons the offence is proved to the
satisfaction of the magistrate, he may, in addition to any other power
which he may possess, order that any fine imposed, if not duly paid, shall
be recovered by distress and sale of the machinery, goods and chattels
found in the industrial undertaking in question, and the provisions of the
Magistrates Ordinance (Cap. 227) shall apply in the case of such distress
and sale as they apply to any distress and sale under that Ordinance.
(2) Any summons relating to an offence against this Ordinance by a person
employed in an industrial undertaking may be served by leaving a copy of
the summons either with some person for him at his last or most usual
place of abode or with some person for him at the industrial undertaking
mentioned in the summons.
16. Presumptions
In any prosecution under this Ordinance-
(a) if it appears to the magistrate that any person who is alleged in the
charge to have been a young person or child at the date of the alleged
offence was a young person or child at the said date, it shall, until the
contrary is proved, be presumed that such person was a young person or
child at the said date;
(b) if it appears to the magistrate that any young person or child who is
alleged in the charge to have been under any particular age at the date of
the alleged offence was under that particular age at the said date, it
shall, until the contrary is proved, be presumed that the said young
person or child was under the said age at the said date;
(c) if the charge
alleges the contravention of any of the provisions of this Ordinance
prohibiting or controlling the employment of women, young persons or
children and the defendant in such prosecution is the proprietor of the
industrial undertaking in or in respect of which the offence is alleged to
have been committed, it shall, until the contrary is proved, be presumed
that any woman, young person or child to whom the charge relates and who
was employed in the industrial undertaking on the day on which the offence
is alleged to have been committed was employed therein on that day by such
proprietor.(Added 51 of 1961 s. 5)
17. Prosecution of offences
(1) Prosecutions for offences against this Ordinance may be brought in the
name of the Commissioner for Labour, and may be commenced and conducted by
any officer of the Labour Department.
(2) Save as is provided in subsection (1), no prosecution for an offence
against this Ordinance shall be commenced without the written consent of
the Commissioner for Labour.
(3) Nothing in this section shall be deemed
to derogate from the powers of the Attorney General in relation to the
prosecution of criminal offences.
18. Onus of proving limits of what is practicable, etc.
(1) In a proceeding for an offence under a provision in this Ordinance
consisting of a failure 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 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.
(2) In a proceeding for an offence
under a provision in this Ordinance consisting of an exemption from
compliance with a duty or requirement to do something where it is
impracticable, not reasonably practicable or rendered impracticable to
comply with that duty or requirement, the onus is on the accused to prove
that it was impracticable or not reasonably practicable to do more than
was in fact done to comply with the duty or requirement.
(3) Subsections (1) and (2) do not apply where the offence is committed on
or before the commencement [1] of this section.
(Added 71 of 1989 s. 12)
19. Civil liability
This Ordinance does not-
(a) confer a right of action in civil proceedings in respect of a failure
to comply with section 6A or 6B; and
(b) affect the extent (if any) to which breach of any other provision is
actionable. (Added 71 of 1989 s. 12)
FIRST SCHEDULE [ss. 2 & 8] DANGEROUS TRADES
1. Boiler chipping.
2. (Repealed L. N. 222 of 1983)
3. The manufacture of glass from basic raw materials. (Replaced L. N. 222
of 1983)
4. Manufacturing processes involving the use of arsenic, lead, manganese,
mercury, phosphorus, or any compound of any of them. (Amended L. N. 222 of
1983)
5. Vermilion manufacture.
6. Chromium plating.
7. The machining or grinding of celluloid or magnesium, or of any article
wholly or partly made of celluloid or magnesium in any manufacturing
process. (Replace L. N. 222 of 1983)
8. The manufacture of hydrochloric, nitric or sulphuric acids.
SECOND SCHEDULE [ss. 2 & 8] SCHEDULED TRADES
1. Any industrial undertaking involving the use of any dangerous goods
specified in Category 5 in the Schedule to the Dangerous Goods
(Classification) Regulations (Cap. 295 sub. leg) and for which a licence
is required under the Dangerous Goods Ordinance (Cap. 295). (Amended L. N.
222 of 1983)
2. Any industrial undertaking involving the use of coal gas.
3. Any industrial undertaking involving the use of electricity as motive
power or for heating or in any electrolytic process, other than
electricity used solely for the ventilation, heating or lighting of a
building.
4. Any industrial undertaking involving the use of any X-ray or
radioactive substance. (Added G. N. A. 62 of 1956)
THIRD SCHEDULE [ss 2 & 8] SPECIFIED STRUCTURES AND WORKS
1. Any building, edifice, wall, fence, or chimney, whether constructed
wholly or partly above or below ground level.
2. Any road, motorway, railway, tramway, cableway, aerial ropeway or
canal. (Amended 19 of 1976 s. 32)
3. Any harbour works, dock, pier, sea defence work, or lighthouse.
4. Any aqueduct, viaduct, bridge, or tunnel.
5. Any sewer, sewage disposal works, or filter bed.
6. Any airport or works connect with air navigation.
7. Any dam, reservoir, well, pipeline, culvert, shaft, or reclamation,
8. Any drainage, irrigation, or river control work.
9. Any water, electrical, gas, telephonic, telegraphic, radio, or
television installation or works, or any other works designed for the
manufacturing or transmission of power or the transmission or reception of
radio or sound waves.
10. Any structure designed for the support of machinery, plant, or power
transmission lines.
(Added 52 of 1973 s. 6)
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