Hong Kong Ordinances

FACTORIES AND INDUSTRIAL UNDERTAKINGS ORDINANCE - SECT 6BA

Proprietor of relevant industrial undertaking not to employ, etc. relevant person who does not have relevant certificate

(1) In this section-

"appointed day" (指定日期) means the day appointed under subsection (17);

"certificate" (證明書) means a certificate referred to in subsection (2);

"relevant certificate" (有關證明書), in relation to a relevant person
employed at a relevant industrial undertaking, means the certificate issued to
the person in respect of his attendance at the relevant safety training course
which relates to that undertaking;

"relevant industrial undertaking" (有關工業經營) means an
industrial undertaking the subject of a notice under subsection (2);

"relevant person" (有關人士), in relation to a relevant industrial 
undertaking, means a person the subject of a notice under subsection (2) in
the case of that undertaking;

"relevant safety training course" (有關安全訓練課程), in relation to a
relevant  person, means the safety training course the subject of a notice
under subsection (2) in the case of the class of persons to which that person
belongs.

(2) The Commissioner may, by notice in the Gazette, or by notice in writing
published in such other manner as the Commissioner thinks fit, recognize a
safety training course-

   (a)  for a class of persons-

        (i)    employed at an industrial undertaking specified in column 1 of
               the Fourth Schedule; and

        (ii)   belonging to the persons specified opposite the undertaking in
               column 2 of that Schedule; and

   (b)  in respect of which a certificate is issued to a person who attends
        the course.

(3) A certificate issued to a person who attends a safety training course
which is subsequently recognized under subsection (2) shall, unless otherwise
provided in the notice under that subsection recognizing the course, for the
purposes of this Ordinance have the same effect as a certificate issued to a
person who attends the course on or after the day on which the course is so
recognized.

(4) Where the Commissioner is satisfied that a relevant person has undergone
training-

   (a)  equivalent to the training provided by a relevant safety 
        training course; and

   (b)  of a standard not less than the standard of the training provided by
        that course, then-

        (i)    the Commissioner may issue or cause to be issued to the person
               a certificate in the same terms as the certificate that would
               have been issued to the person if he had attended that course;
               and

        (ii)   the certificate so issued shall, for the purposes of this
               Ordinance, have the same effect as a certificate issued to a
               person who has attended that course.

(5) On and after the appointed day, every proprietor of a relevant 
industrial undertaking-

   (a)  shall not employ at the undertaking a relevant person who has not been
        issued a relevant certificate or whose relevant certificate has
        expired;

   (b)  in the case of a relevant person employed at the undertaking-

        (i)    immediately before that day who has not been issued a relevant 
               certificate or whose relevant certificate has expired, shall
               cease to continue to employ the person at the undertaking on
               the expiration of 1 month after that day unless, before that
               expiration, the person has been issued a relevant certificate;

        (ii)   on or after that day whose relevant certificate expires during
               the course of his employment, shall cease to continue to employ
               the person at the undertaking on the expiration of 1 month
               after the expiration of the certificate unless, before the
               expiration of that month, the person has been issued a
               relevant certificate.

(6) A certificate shall expire on-

   (a)  the day specified in the certificate, being a day not less than 1
        year, and not more than 3 years, after the day on which the
        certificate was issued;

   (b)  if no such day is specified, on the expiration of 3 years after the
        day on which the certificate was issued.

(7) On and after the appointed day, it shall be the duty of every
relevant person employed at a relevant industrial undertaking who has been
issued a relevant certificate which has not expired to-

   (a)  carry the certificate with him while at work at the undertaking;

   (b)  produce the certificate upon demand by-

        (i)    subject to paragraph (c), the proprietor of the undertaking or
               an agent of the proprietor authorized by the proprietor for the
               purpose; or

        (ii)   subject to paragraph (d), an occupational safety officer;

   (c)  if unable to comply with a demand under paragraph (b)(i), make a
        statement-

        (i)    subject to subparagraph (ii), in a register kept by the
               proprietor of the undertaking under subsection (8), that he has
               been issued the certificate and the certificate has not expired
               and containing such other particulars as are required by the
               register; and

        (ii)   if and only if he has not made a like statement in that
               register on the day immediately preceding the day on which that
               demand is made;

   (d)  if unable to comply with a demand under paragraph (b)(ii), produce the
        certificate at a place and within a period-

        (i)    specified by the occupational safety officer who made the
               demand; and

        (ii)   which are reasonable in all the circumstances.

(8) On and after the appointed day, every proprietor of a relevant 
industrial undertaking shall-

   (a)  establish and maintain a register or registers for the purposes of
        subsection (7)(c) in such form as is specified by the Commissioner;

   (b)  not cause or permit any statement referred to in subsection

(7)(c) made in any such register to be removed therefrom at any time before
the expiration of 18 months from the date on which the statement was made in
the register.

(9) Where a relevant certificate which has not expired has been lost, defaced
or destroyed, the relevant person to whom it was issued shall, unless he has
ceased to be employed at a relevant industrial  undertaking, as soon as is
reasonably practicable make an application to the Commissioner to be issued a
replacement relevant certificate in the same terms (and any such application
may consist of, or require the accompaniment of, a statutory declaration made
by the person as to the loss, defacement or destruction of the certificate).

(10) The Commissioner shall issue or cause to be issued a replacement
relevant certificate pursuant to an application under subsection (9) upon
being satisfied that the relevant certificate which it will replace has in
fact been lost, defaced or destroyed.

(11) A replacement relevant certificate issued pursuant to an application
under subsection (9) shall, for the purposes of this Ordinance, have the same
effect as the relevant certificate which it replaces.

(12) Subject to subsection (13), a proprietor who contravenes subsection (5)
commits an offence and is liable to a fine at level 5.

(13) It shall be a defence to a prosecution for an offence under subsection
(12) for the proprietor to show that he believed, and that it was reasonable
for him to believe, that the relevant person to whom the offence relates had
been issued with a relevant certificate and that the certificate had not
expired.

(14) A relevant person employed at a relevant industrial  undertaking who-

   (a)  makes a statement referred to in subsection (7)(c); and

   (b)  is not a person who has been issued a relevant certificate which has
        not expired at the time of making that statement, commits an offence
        and is liable to a fine at level 3.

(15) A relevant person who, without reasonable excuse, contravenes subsection
(7)(d) commits an offence and is liable to a fine at level 3.

(16) A proprietor who contravenes subsection (8) commits an offence and is
liable to a fine at level 3.

*(17) The Secretary for Education and Manpower may, by notice in the Gazette,
appoint a day for the purposes of subsections (5), (7) and

(8).

(18) A notice under subsection (17) is subsidiary legislation.

(19) For the avoidance of doubt, it is hereby declared that subsection (5)(b)
shall not operate to entitle an employer to terminate the contract of
employment of an employee otherwise than in accordance with the provisions of
the Employment Ordinance ( Cap 57) in the case of an employee within the
meaning of section 2(1) of that Ordinance. (Added 53 of 1999 s. 3)
___________________________________________________________________________ __
Note:

* 1 May 2001 was the day appointed under this subsection - see Cap  59 sub.
leg. AH.

"appointed day" (指定日期)

"certificate" (證明書)

"relevant certificate" (有關證明書)

"relevant industrial undertaking" (有關工業經營)

"relevant person" (有關人士)

"relevant safety training course" (有關安全訓練課程)