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Government gazettes Employment (Amendment) Bill 2017
     The Government published in the Gazette today (May 5) the Employment (Amendment) Bill 2017. The Bill seeks to amend the Employment Ordinance (EO) (Cap. 57) to empower the Labour Tribunal to make an order for reinstatement or re-engagement as requested by an employee in a case of unreasonable and unlawful dismissal without the need to first secure the employer's agreement if the Tribunal considers that the making of such an order is appropriate and practicable.
     A spokesman for the Labour Department (LD) said, "Under the existing EO, where an employee dismissed unreasonably and unlawfully makes a claim for reinstatement or re-engagement, the Tribunal has to secure the agreement of the employer to make the order for reinstatement or re-engagement even if it considers making such an order appropriate. A broad consensus has been reached at the Labour Advisory Board (LAB) that the requirement to secure the employer's agreement in a case of unreasonable and unlawful dismissal should be removed."
     The Bill also proposes that, where the Tribunal has made an order for reinstatement or re-engagement in a case of unreasonable and unlawful dismissal, should the employer fail to reinstate or re-engage the employee as required by the order, the employer shall pay to the employee a further sum set at three times the employee's average monthly wages subject to a maximum of $72,500. This amount is on top of the monetary remedies payable to the employee as ordered by the Tribunal as currently provided in the EO. The employer commits a criminal offence if he/she wilfully and without reasonable excuse fails to pay this further sum.
     The spokesman explained that "unreasonable dismissal" under the EO refers to the situation where an employee is dismissed other than for a valid reason as specified under the EO (valid reasons for dismissal include the conduct of the employee, his/her capability/qualification for performing the job, redundancy or other genuine operational requirements of the business, compliance with legal requirements, or other reasons of substance). "Unlawful dismissal" under the EO refers to a dismissal in contravention of labour legislation, including dismissal during pregnancy and maternity leave, during paid sick leave, after work-related injury and before determination/settlement and/or payment of compensation under the Employees' Compensation Ordinance (Cap. 282), or by reason of the employee exercising trade union rights or giving evidence for the enforcement of relevant labour legislation.
     "The Bill is largely the same as the Employment (Amendment) Bill 2016 (the amendment bill 2016) introduced into the Legislative Council (LegCo) in March 2016 which lapsed at the end of the 2012-16 LegCo term.  Regarding the views expressed by members of the LegCo Bills Committee on the amendment bill 2016, the LD has, in accordance with the established practice, passed those views to the LAB for consideration. After further deliberations, the LAB reached a consensus that the original legislative proposal should remain unchanged except that the ceiling for the further sum should be raised from the originally proposed $50,000 to $72,500. The current Bill reflects the LAB's latest consensus," the spokesman added.
     The Bill will be introduced into the LegCo on May 17.
Ends/Friday, May 5, 2017
Issued at HKT 11:00
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