Full legislation
s.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);
equivalent document
(
同等文件
) means a document recognized by the
Commissioner for the purposes of
section 6BA(7
)(
a)
as being equivalent to
a person’s relevant certificate;
(Added
22 of 2014 s. 41
)
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
Schedule
4
; 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 with the person the certificate or an equivalent document while at
work at the undertaking;
(Amended
22 of 2014 s. 41
)
(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
on
conviction to a fine at level 6.
(Amended
5 of 2023 s. 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
on
conviction to a fine at level 4.
(Amended
5 of 2023 s. 5
)
*(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.