TNAG-0087-FCO40-123-Conditions-of-employment-for-Hong-Kong-Chinese-working-in-th-1969 — Page 26

Reference...

23

(His long. letter)

Flag B

(140 Conv 64)

Flag A

(Model Contract) Flag E

* only ni respect of one clause.

(cousel's Opinion) Flaq

(our reply) Fla

(Ordinance) Flaq C

(See Flag B)

Flaq K.

K

Mr. Brown

We have had some lengthy discussions, between ourselves and with Mr. Sedgwick of the Hong Kong Government Office, about overseas employment contracts and in particular Fr. Burn's representations at (E/16) on this subject. The outcome is a draft letter to Mrs. Jeger (there is a further revised version below) which I think is adequate for its purposes. But there are still one or two matters which are causing me some disquiet and which leave me with the impression that, despite his incoherence, Mr. Burn's representations may contain some valid points. I think we should put these matters to legal advisers before finalising the draft.

2. My doubts centre on the responsibility which the model contract places on the employer for repatriating workers. Neither the I.L.O. Convention No. 64 nor the Hong Kong legislation pins responsibility for repatriation on the employer where the contract is terminated by, or in consequence of, the default of the worker. There is no mention of this qualification of the employer's responsibility in the model contract. Mr. Burn has claimed (backed by Counsel's opinion) that some of the clauses in the model contract are ultra vires; his Counsel has particularly referred to Clause 14(c) of the contract as being in this category. It does not seem sufficient for us to counter this, as we did at (14), by saying that the model contract is one on which the Commissioner of Labour does not insist, if in fact there are parts of it, such as Clause 14(c), on which he does insist. Whether he insists or not in this particular case is not clear from the papers. But if he does, what is his authority and is there any basis for the assertion that he is acting ultra vires? The crux of the matter seems to lie in the interpretation of Sections 5 and 10 of the Hong Kong Ordinance. Does this lay down only the minimum requirements for attestation on which the Commissioner of Labour can enlarge if he wishes, or does it require him to attest contracts which conform with these minimum require- ments? If the latter interpretation is correct then it seems that he could not refuse to attest a contract containing a Clause 14(c) varying from the model clause to the extent of exempting the employer from responsibility in the event of default by a worker. Nor could he decline to attest because a freely negotiated notice period of (say) six months appeared in Clause 14(b), although the model contract indicates three months. We have incidentally noted an apparent incongruity in Clai se 14 as drafted in the model contract; it is that the worker who gets himself dismissed by the employer because of misconduct under (c) can claim that the employer is entirely responsible for his repatriation, whereas the worker who gives due notice under (b), possibly for good cause, must bear a proportion of the cost of his repatriation. This is the point I think Mr. Burn is making at Z on page 2 of his letter.

3.

modal

Mr. Burn

There is a different but connected point, which seems to me to involve the interpretation of Clauses 9(a) and 14 of the contract. (on the strength of his Coûnsel's opinion) takes the view that an employer is liable under Clause 14(b) for part of the repatriation cost of a worker who

walks out...