TNAG-0087-FCO40-123-Conditions-of-employment-for-Hong-Kong-Chinese-working-in-th-1969 — Page 100

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رسمس

TEL. No.

REFERENCE No.

228966

ES: OE/UK/POL

Dear Pat,

LABOUR DEPARTMENT,

BASKERVILLE HOUSE,

22, ICE HOUSE STREET,

HONG KONG. 3rd May

1967.

56 A

A law officer has now read the copy of Mr. Lawrence's legal opinion on contracts entered into under the Contracts for Overseas Employment Ordinance forwarded with your letter (reference 16/108) of 8th March, 1967. He agrees generally with the interpretation but also with the following comments.

2.

I do not dispute that I have no authority to dictate the terms of any contract other than those at variance with section 5 (2). I have never done so and, in the past, rates of wages, overtime pay, hours of work, holidays, advances, and similar matters have been left to negotiation between employer and worker. This does not prevent me, in my capacity as Commissioner of Labour, from advising either party of what appear to be unsatisfactory conditions but, in the last resort, I have only very limited statutory powers to impose terms.

3.

The model contract is simply one which we recommend for use. There is no compulsion on the employer to adopt it. This point was specifically made to Mr. Burns in paragraph 7 of our letter (reference E/EMP/: of 17th August, 1966. We, for our part, are quite clear about the right of both parties to draw up their own contracts. I feel that quite a few of our problems with Mr. Burns have arisen over the wrong impression that we insist on the use of our own model. This is not so. We are trying to be helpful and to guide both parties along what we consider are the right lines. To some extent Mr. Lawrence is pushing on an open door. Nonetheless, we are grateful for his helpful opinion and we propose to amend, yet again clause 14 of our model. While we think that one month's notice is reasonable, we do not want to give any false impression that it is a statutory requirement. You will recall that, in my letter of 20th December, 1966, I told you of changes to be made in clause 14. We have been making them in our old printed copies, stocks of which have not yet been exhausted. But they will be shortly and the new printed models will leave appropriate blank spaces in clauses 14 (a) and 14 (b).

4.

Mr. Lawrence appears to suggest that it would be ultra vires for me to refuse a contract because, in my view, the term is too long or too short. I agree that I have no authority to refuse a contract which I might think is too short but Mr. Lawrence appears to have overlooked section 12 of the ordinance. This stipulates the maximum durations in certain circumstances and, consequently, if these are exceeded, I consider that I am required by statute to refuse to attest.

5.

Regarding clause 18 of the model contract I have discovered that this was included in your instructions in the last stages of drafting. I personally agree that it is a proper and reasonable requirement otherwise we indirectly become a party to the recruitment of sweated labour and second-class citizens. I accept that I can not insist on this clause but I am now considering whether or not I should seek amendments to the ordinance to give me greater powers over some of the terms of contracts.

RECEIVED IN

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