NG YICK AND OTHERS v. TUNIS LTD AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

IABOUR TRIBUNAL APPEAL NO. 90/86

(CLAIM NO 4205/86)

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J U D G M E N T

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1. This is an appeal against the determination of the Labour Tribunal awarding 15 claimants various amounts claimed as wages against the Appellant who was the 1st Defendant and a 2nd Defendant who has not appealed The Appellant was the principal contractor on two sites (Lot 243 and Lot 138) in Shatin. It subcontracted some of the construction work to the 2nd Defendant. It was the 2nd Defendant who employed the 15 claimants and who failed to pay them. The 2nd Defendant did not dispute his liability and has not appealed against the award.

2. The Appellant's liability stems not from the contracts of employment, which were between the 2nd Defendant and the complainants, but from the provisions of section 43C of the Employment Ordinance (Cap. 57). Those provisions provide that if any wages become due to an employee who is employed by a subcontractor on any work which the subcontractor has contracted to perform, and such wages are not paid within the period due, the wages shall be payable to the employee by the principal contractor.

3. Mr, Alexander Wong for the Appellant does not dispute that the wages were not paid within the period required. However he submits that under section 43D it is a condition precedent to liability under section 43C that a notice conforming to the requirements of section 43D has to be given by the employee to the principal contractor, and that such notice wtas not given in that it failed to state the required particulars. Section 43D is in the following terms

"(1)     Where the wages of an employee who is employed by a sub-contractor are not paid by his employer within the period specified in section 23, 24 or 25, as the case may be, the employee shall serve on the principal contractor, within 60 days for such other additional period not exceeding 90 days as the Commissioner may permit) after the date on which the wages become due, a notice in writing stating the:

	(b)     name and address of his employer;
	(c)     address of the place of employment of the employee;
	(d)     particulars of the work in respect of which the wages are due; and
	(a)     name and address of the employee;
	(e)     amount of wages due and the period to which they relate.

(2)    ......

(3)     A principal contractor and superior sub-contractor (if any) shall not be liable to pay any wages under section 43C to the employee of a sub-contractor if that employee fails to serve a notice on the principal contractor under subsection (1)."

4. It is not disputed that two notices were given to the Appellant by the claimants The first was in the following terms:

Sir/Madam:

Notice of claim for arrears of wages

I am/We are the employee(s) of Chong Kin Sun, No.28, Block 28, Mui Li Resettlement Estate Shatin (Name and address of employer), and was were employed in respect of Stage II Golden Lion Garden Lung Hang Estate Shatin Lot 243 working address in concrete settling nature of work). My/Our wages for the period between the 1st day of August 1986 and the 31st day of August 1986 are now in arrears and it totals about Hong Kong Dollar Sixty Two Thousand Five Hundred and Forty.

Therefore, pursuant to the stipulation of Section 43D(1)/Section 43H(1) of the Employment Ordinance, you are requested to pay the above arrears of wages as soon as possible

The second notice was in identical terms save that the name and address of the 15th claimant was set out at the top, the total amount of arrears was stated to be twenty-three thousand five hundred and sixty-nine, and the employees listed at the bottom were the remaining four claimants Wong Yee Chong (15th claimant), Ng Chui Pui (14th claimant), Cheng Chok (10th claimant) and Ho Luen Sang (13th claimant).

7. It is manifest that both notices are deficient in the following respects: First the addresses of 13 of the claimants is not stated; second the address of the place of employment is not stated insofar as Lot 138 is concerned; and third, only the aggregate of the wages in respect of the two lots of claimants is stated and no individual break-down is provided.

8. Mr. Wong submits that as statutory liability is being imposed upon the principal contractor, there should be strict compliance with the requirements of section 43D(1), He seeks to rely upon the analogy of a company winding-up petition. It is settled law, he says, that no amendment to such a petition will be permitted. Pursuing the analogy he submits the requirements of section 43D must be strictly complied with. Furthermore he says that in the case of a winding-up petition the requirements are imposed by subsidiary legislation whereas in the present instance they are expressly provided by the Ordinance. Upon that basis he submits that the requirements must be strictly complied with so that even the slightest deficiency should be fatale He produces no authority for that construction, which I will say at once I think oppressive and needlessly destructive of the objective of Part IXA of the Ordinance i.e. to ensure that workers get their wages in the way provided.

9. I do not think it matters whether the requirements are prescribed by subsidiary legislation or the principal Ordinance It is the intention and effect of the relevant provisions that matter, and I am not able to discern in those provision any such intention or effect as is contended for. In my view a notice obviously intended to meet the requirements of section 43D and which complies with virtually all those requirements must, prima facie, be a notice under that section, It would not cease to be such simply because of some minor omission or deficiency, unless that was expressly provided or necessarily implied. There is no such express provision nor, in my view, as I have said any such necessary implication. A requirement for absolute compliance would mean that notices that might contain inaccurate details or that might inadvertently omit detail inconsequential in the particular circumstances would nonetheless be vitiated. That would not only be an absurd result, it would be a result that would be contrary to the obvious intention of the legislation to secure payment of workers' wages. Finally, as will be seen, strict compliance is not necessary to achieve the equally clear object of section 43D i.e. to alert principal contractors to the claims of workers of their sub-contractors. I accordingly reject Mr. Bong's submission that absolute compliance is required. Like the learned Presiding Officer I consider that it must be a matter of the degree to which the notice complies with the requirements of section 43D, measured in the light of the particular circumstances and of the obvious objects of the relevant provisions.

10. That brings me to Mr. Wong's alternative submission that the defects in the notice are so great and so undermine the very object of the notice (i.e., as I have said, to alert the principal contractor, and before, for instance, he parts with retention monies, destroys records and so on) that they totally fall short of the requirements of section 43D(1). Of the eight elements required by section 43D(1) it is only in respect of three that the two notices fall short and that only in the following minor respects i.e. omission of the addresses of 13 claimants, omission of LR 138 as a place of work, and omission of the breakdown of wages. At first sight those omissions did not appear to me to be so extensive or intrinsically fundamental as to vitiate the notices. Nothing that has been urged upon me by Mr. Wong nor the further consideration that I have given to the matter in consequence of being told that it has incredibly not been raised in the courts before, leads me to a different conclusion.

11. At this point I ought to refer to a further submission Mr. Wong makes. He submits that the jurisdiction of the Labour Tribunal in the present context under section 7 of the Labour Tribunal Ordinance (Cap. 25) and para. 5 of the Schedule thereto, turns upon the right of the employee to payment of wages under Part IXA of that Ordinance, and if proper notice was not given, then the Labour Tribunal would not have had jurisdiction in the first place. I think that submission can be very shortly disposed of by reference to para. 5 of the Schedule which confers upon the Tribunal jurisdiction to deal with "any question as to ... the right of an employee to payment of wages by a person other than his employer under Part IXA of the Employment Ordinance', Clearly there is a question as to the existence of such a right. Whether or not the notices were valid is part of that question and not a preliminary issue upon which the jurisdiction of the Tribunal turns, The submission is clearly devoid of merit.

12. Reverting to the deficiencies in the notices, notwithstanding my conclusion that they were not so extensive or intrinsically of such a nature as to vitiate the notices, I consider that if in the particular circumstances they tend to defeat the apparent object of section 41D, which I apprehend is to alert principal contractors, or even to prevent them being prejudiced in their defence against such claims, there may be good cause for rejecting the notices as invalid. The omission of the addresses of the 13 claimants, I am satisfied, did not have such. effect; indeed it was not suggested that it did. But Mr, Wong forcefully submitted that the other two omissions did have such effect and that the Appellant's representative at the original hearing complained to the Presiding Officer, as the record shows, that the notices were vague, the amounts were not clear and that there was no way to verify where the work was performed. Having regard to the evidence I am satisfied that notwithstanding the omissions the Appellant was in fact alerted to an entirely adequate degree and that in the event it was not prejudiced in its defence. Its foreman on LR 138, the site which was not notified presented the same sort of evidence as did the foreman on LR 243, which was notified The other documentation served upon the Appellant prior to the original hearing clearly set out not only the individual wage amounts claimed but much other information of the claims,. In this respect also there is therefore no reason to interfere with the decision.

13. For the foregoing reasons, I agree with the conclusion the learned Presiding Officer reached, that the two notices in question did comply with the requirements of section 43D, That being the only ground pursued, it follows therefore that the appeal must be dismissed.

14. There is however one incidental aspect of the case upon which I must comment. The two notices consisted of pro forma completed by a labour Officer on behalf of the claimants who are illiterate. While the pro forma might normally well be adequate, it seems to be designed essentially for individual claims Simply to slip into it a consolated claim of numerous employees, leads to the dangers and shortcomings canvassed in this appeal. Indeed the labour Officer concerned was clearly made aware of that by the submissions to and decision of the Presiding Officer at the original hearing, for only two days later under section 43D in pursuance of powers delegated by the Commissioner, he extended the period for giving notice, from 60 to 90 days; and then proceeded to serve fresh individual notices. Those, alas, could only have served to close the stable door after the horse had bolted, for they could not have cured the original notices upon which by then the Tribunal had already proceeded; furthermore they served only to highlight the deficiencies in the original notices. In the light of this case it may be prudent to add a note to the pro forma, cautioning against its use upon a consolated basis for multiple claims.