Commissioner for Labour v. Administrative Appeals Board

HCAL 2544/2018

[2020] HKCFI 1244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2544 OF 2018

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BETWEEN

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J U D G M E N T

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INTRODUCTION

1.This is the rolled-up hearing of an application by the Commissioner for Labour (“the Commissioner”) for judicial review of the decision of the Administrative Appeals Board (“AAB”) dated 14 August 2018 allowing the appeal of Ms Chan Oi-Mee (“Ms Chan”) against the Commissioner’s decision to refuse her application for registration as a safety auditor under the Factories and Industrial Undertakings (Safety Management) Regulation, Cap 59AF (“the SMR”).

BASIC FACTS

2.Ms Chan holds a Bachelor of Science degree with Honours in Environmental Science and Management, and a Master of Philosophy degree from the City University of Hong Kong.  She has also completed a Diploma in Occupational Health and Safety at the Open University of Hong Kong and a Diploma in Safety Auditing at the Social Resources Development Centre.

3.Ms Chan has been registered as a safety officer under the Factories and Industrial Undertakings (Safety Officers and Safety Supervisors) Regulations, Cap 59Z, since 15 June 2012.

4.Ms Chan commenced her employment by MTR Corporation Limited (“MTRC”) as an Assistant Construction Safety Advisor in its Operations Projects Department (“the OPD”) on 25 March 2013.  She was promoted to the position of Construction Safety Advisor in the OPD on 1 February 2015.

5.According to Ms Chan, the OPD provides project management services to the Operations and Commercial & Marketing Divisions including asset replacement and station improvement works, commercial projects and extension project/pedestrian link interface works.  As Assistant Construction Safety Advisor and subsequently Construction Safety Advisor, she was, and is, responsible for safety and health issues in the OPD, and her full time employment was, and is, entirely related to industrial safety and health matters.

6.On 22 April 2016, the Labour Department received Ms Chan’s application with some supporting documents for registration as a safety auditor under the SMR.  Her application was supplemented by further submissions (6 in total) with additional supporting documents over the period from October 2016 to October 2017.

7.By a letter dated 9 November 2017, the Commissioner rejected Ms Chan’s application, stating, so far as relevant, as follows:

“From the very beginning of your application (i.e. since our 2^nd letter sent to you on 5.7.2016), we have repeatedly reminded you to furnish us with relevant official documents to reflect that you have not less than 3 years’ (e.g. 36 months) full time experience, in the 5 years period immediately preceding the application concerned, in a managerial post responsible for industrial safety and health matters in respect of an industrial undertaking. Despite our continual advice and reminders, we have not received any further submission of sufficient and supportive official documents to substantiate your application in relation to your experience obtained in all of your employment after your last document submission on 24.2.2017.

After thorough examination of your qualifications and experience revealed in the application and the information you provided, as you failed to provide information to substantiate you have not less than 3 years’ full-time experience in the 5 years period immediately preceding the application in a managerial post responsible for industrial safety and health matters in respect of an industrial undertaking under Schedule 1 of the Regulation, I regret to inform you that your application for registration as a safety auditor is hereby refused.”

8.By a notice of appeal dated 4 December 2017, Ms Chan appealed against the decision of the Commissioner to the AAB.  On 17 April 2018, the AAB heard Ms Chan’s appeal.  By a written decision dated 14 August 2018 (“the Decision”), the AAB allowed Ms Chan’s appeal, finding that Ms Chan “has demonstrated sufficient experience to satisfy the eligibility requirements under Schedule 1 to the SMR”.

APPLICATION FOR JUDICIAL REVIEW

9.On 13 November 2018, the Commissioner made the present application for leave to apply for judicial review of the Decision.  As can be seen from §3 of the Form 86, the Commissioner relies upon two grounds of judicial review:

(1)  Ground 1 - that the AAB erred in failing to consider the requirement in s 4 of, and Schedule 1 (“Schedule 1”) to, the SMR, namely, that Ms Chan must demonstrate 3 years’ experience (“the 3 Years’ Experience Requirement”) in a managerial post responsible for industrial safety and health matters in respect of an industrial undertaking (“Relevant ISH Experience”) in the 5 years period preceding her application.  The AAB misdirected itself as the evidence provided by Ms Chan demonstrated at most 26 months of relevant experience only.

(2)  Ground 2 - that the AAB erred in refusing to consider the “Code of Practice on Safety Management” (“the CoP”) issued by the Labour Department to provide practical guidance on the requirements of the SMR, despite the CoP being relied on by both the Commissioner and Ms Chan.

10.On 20 November 2018, the court directed a rolled-up hearing of the application.

THE ELIGIBILITY REQUIREMENTS FOR REGISTRATION AS SAFETY AUDITOR

11.The background to the SMR is succinctly set out in the “Introduction” to the CoP:

“In 1995, the Government conducted a comprehensive review of industrial safety with a view to mapping out Hong Kong’s long-term safety strategies. The Review concluded that for Hong Kong to achieve high standards of safety and health at work, enterprises must embrace self-regulation and safety management. The Review recommended that the Government should provide a framework within which self-regulation was to be achieved through a [complete] system of safety management.

Against this background, the Government has introduced a safety management system consisting of 14 elements. It has promoted the system through launching pilot schemes, publishing an Occupational Safety Charter, organising seminars and promotional visits, and issuing a Guide to Safety Management. This system is now enshrined in the Factories and Industrial Undertakings (Safety Management) Regulation [hereinafter called ‘the Safety Management Regulation’] passed on 24 November 1999.

Under the Safety Management Regulation, proprietors or contractors of certain industrial undertakings are required to develop, implement and maintain in respect of the undertakings a safety management system which contains a number of key process elements. They are also required to have the system regularly audited or reviewed.”

12.Under the SMR:

(1)  “Safety management” is defined to mean:

“the management functions connected with the carrying on of an industrial undertaking that relate to the safety of personnel in the undertaking, including -

(a) the planning, developing, organizing and implementing of a safety policy; and

(b) the measuring, auditing or reviewing of the performance of those functions”.

(2) “Safety Audit” is defined to mean:

“an arrangement for -

(a) collecting, assessing and verifying information on the efficiency, effectiveness and reliability of a safety management system (including the elements specified in Schedule 4 contained in the system); and

(b) considering improvements to the system”.

(3) “Safety auditor” is defined to mean:

“a person who conducts or proposes to conduct safety audit”.

(4) Section 3(1)(a) provides that the Commissioner shall establish and maintain a register consisting of 2 parts, of which Part 1 shall contain “particulars of the names and addresses of all persons registered as safety auditors and such other matters, if any, as he thinks fit”.

(5) Section 13(1) provides that a proprietor or contractor in respect of certain industrial undertakings as specified in Part 1 or 3 of Schedule 3 to the SMR is required to appoint a registered safety auditor to conduct a safety audit in relation to the relevant industrial undertaking.

(6) Section 13(2) provides for periodic safety audits to be conducted by a safety auditor in respect of the relevant industrial undertaking.

(7) Section 15 provides for the submission by a safety auditor of a safety audit report not later than 28 days after completing the audit to the proprietor or contractor who appointed him.

(8) Section 16 makes provisions regarding the actions to be taken by the proprietor or contractor to whom a safety audit report has been submitted under Section 15.

13.Section 4(1) of the SMR provides that a person is eligible for registration as a safety auditor if the person complies with the requirements (“the Eligibility Requirements”) of Schedule 1, namely:

“1 Subject to section 3, the person shall -

(a) be a registered safety officer under the Factories and Industrial Undertakings (Safety Officers and Safety Supervisors) Regulations (Cap. 59 sub. leg. Z);

(b) have not less than 3 years’ full-time experience, in the 5 years period immediately preceding the application concerned under section 5 of this Regulation, in a managerial post responsible for industrial safety and health matters in respect of an industrial undertaking;

(c) subject to section 2, occupy, at the time of the application concerned under section 5 of this Regulation, the managerial post referred to in paragraph (b), or a like post;

(d) have successfully completed -

(i) a scheme conducted by a registered scheme operator; or

(ii) before the commencement of this Schedule, a scheme recognized by the Commissioner for the purposes of this Schedule; and

(e) understand the requirements under legislation in Hong Kong relating to industrial safety and health matters.”

14.The requirement under s 1(b) to Schedule 1, which this case is concerned with, is further explained in the guidelines (“the Guidelines”) issued by the Commissioner on “How to Apply for Registration as a Safety Auditor under the Factories and Industrial Undertakings (Safety Management) Regulation”, §2.4 of the Guidelines states that the Commissioner will apply the following rules in relation to the criteria under sub-paragraph (b):

“(a)  ‘Full-time’ means full-time employment in the post. The applicant should spend a greater proportion of working time, i.e. over 50%, for industrial safety and health (‘ISH’) matters.

(b)  ‘Managerial post responsible for industrial safety and health matters’ means that the applicant must be personally involved in at least one activity associated with managing ISH matters as well as the core duty of implementing ISH programmes.

(c)  The activities associated with managing ISH matters at organization and/or workplace level include:

•  Identifying ISH needs for the workplace,

•  Planning and developing ISH programmes,

•  Evaluating the effectiveness of such programmes, and

•  Implementing improvements to the overall programme.

(d)  The core duty of implementing ISH programmes include the following:

•  Safety policy,

•  Safety organization,

•  Safety training,

•  In-house safety rules and regulations,

•  Safety inspection programme,

•  Hazard control programme (personal protective equipment),

•  Accident/incident investigation,

•  Emergency preparedness,

•  Evaluation, selection and control of sub-contractors,

•  Safety committee,

•  Job hazard analysis,

•  Safety and health promotion,

•  Process control programme, and

•  Occupational health assurance programme.

(e)  Please note that if the working experience is only associated with safety audit activities (i.e. evaluating the effectiveness of ISH programmes), it will not be acceptable for registration as a safety auditor under the Regulation. The managerial post must also involve the core duty of implementing ISH programmes in addition to one or more activities associated with managing ISH programmes (e.g. planning or auditing).

(f)  The post must involve the management of ISH matters in respect of an industrial undertaking. The actual post need not be a designated staff position, or physically located, in an industrial undertaking.”

GROUND 1: FAILURE TO CONSIDER THE 3 YEARS’ EXPERIENCE REQUIREMENT

15.As can be seen from the Commissioner’s letter dated 9 November 2017, he rejected Ms Chan’s application for registration as a safety auditor on the ground that she did not satisfy the 3 Years’ Experience Requirement although, for the purpose of the present application, he accepts that there is evidence, considered generously in favour of Ms Chan, “that she engaged in work amounting to Relevant ISH Experience for 26 months - short of the 3 years/36 months mandated by the 3 Years’ Requirement”[1].

16.Mr Chain (for the Commissioner) has informed the court, in relation to the issue of whether Ms Chan satisfied the 3 Years’ Experience Requirement, that:

(1)  At the hearing before the AAB, the Commissioner primarily took issue with the “quality” of the evidence submitted by Ms Chan in support of her application, ie whether the evidence was capable of demonstrating Relevant ISH Experience[2].

(2)  At the same time, the Commissioner also took issue with the “quantity” of her evidence, ie whether the evidence cumulatively proved sufficient Relevant ISH Experience for 3 years, bearing in mind that work done on an intermittent or ad hoc basis would not satisfy the 3 Years’ Experience Requirement[3].

(3)  The issue of “quantity” of evidence was raised at the hearing before the AAB in the following manner[4] -

(a)  During the course of the hearing, the Commissioner’s representatives (Ms Cheung and Ms Li) made multiple references to the 3 Years’ Experience Requirement.

(b)  Towards the end of the hearing, Ms Li handed up a table (“the Monthly Table”) highlighting the insufficiency of evidence from the “quantity” of evidence standpoint with reference to a month-by-month breakdown.

(c)  Ms Cheung submitted to the AAB that, based on the Monthly Table, taking into account the evidence provided by Ms Chan and accepted by the Commissioner, there were only 19 months where Ms Chan had demonstrated Relevant ISH Experience, short of the 36 months imposed by the 3 Years’ Experience Requirement.

(d)  Ms Li further explained that the Monthly Table reflected the Labour Department’s approach, to first assess the “quality” of evidence to decide what entries can be put onto the Monthly Table, and then assess the “quantity” of evidence to decide whether the entries on the Monthly Table satisfied the 3 Years’ Experience Requirement.

(e)  Ms Li also highlighted that, if the AAB took a different view from the Commissioner on the “quality” of the evidence in any particular instance, additional entries would have to be made on the Monthly Table, but ultimately the entries on the Monthly Table must reflect 36 months of Relevant ISH Requirement to satisfy the 3 Years’ Experience Requirement.

(f)   The AAB remarked that the point made by Ms Li on the Monthly Table appeared to have been raised late in the day, but ultimately indicated that they could use it as a reference (我哋都可以作為一個參考 [5]).

17.The methodology adopted by the Commissioner to compile the Monthly Table which led to his conclusion that Ms Chan could only demonstrate 19 months of Relevant ISH Experience (based on the Commissioner’s assessment), or 26 months of Relevant ISH Experience (based on a generous view of the evidence produced by Ms Chan) is explained in Form 86, at §§17-21, as follows:

“[17] As stated above at paragraph 9, the application of Ms. Chan was received by LD on 22^nd April 2016. Therefore, Ms Chan must show with supporting documents that she had not less than 3 years’ relevant experience in the period from 22^nd April 2011 to 22^nd April 2016.

[18] However, the documentary evidence put forward by Ms. Chan does not satisfy the 3 Years’ Requirement.

[19] In this regard, the Applicant had adopted a generous approach and will:

(a) Assume (for present purposes only) that all documents produced by Ms. Chan demonstrate relevant experience and hence will not be excluded on the basis of irrelevance.

(b) Assume that a document evidences relevant experience for the entire month it which it was produced, e.g. that a document dated 15^th January 2016 evidences relevant experience for the entire month of January 2016.

(c) Assume that where a document spans more than one month (e.g. an email chain starting from January 2016 and ending in February 2016), the document evidences relevant experience for all months thus involved.

[20] When the aforesaid generous approach is applied, it is found that Ms. Chan has provided documents of relevant experience for no more than 26 months:

	2011	2012	2013	2014	2015	2016
Jan	N/A			√	√	√
Feb	N/A			√	√	√
Mar	N/A			√	√	√
Apr			√	√		√
May			√		√	N/A
Jun				√		N/A
Jul			√			N/A
Aug			√	√		N/A
Sep			√			N/A
Oct			√		√	N/A
Nov			√		√	N/A
Dec			√	√	√	N/A

[21] This is insufficient to satisfy the 3 Years’ Requirement. Ms. Chan’s application should have been rejected on this ground alone.”

18.The Commissioner’s case under Ground 1 is that the AAB “did not approach Ms. Chan’s evidence in a similar manner”[6].  Mr Chain also argues that the AAB’s error is “exacerbated by the fact that the Decision is entirely silent on this issue of whether there is sufficient cumulative ‘quantity’ of Relevant ISH Experience.  It appears that the AAB simply failed to consider whether the 3 Years’ Requirement was satisfied from a ‘quantity’ of evidence standpoint, a matter which had been brought to the attention of the AAB by the handing up of the Monthly Table and ensuing submissions”[7].

19.In my view, there was no duty on the part of the AAB to adopt the Commissioner’s approach when determining whether Ms Chan satisfied the 3 Years’ Experience Requirement.  Leaving aside for the moment the question of whether Ms Chan’s work experience could be regard as Relevant ISH Experience (which goes to what Mr Chain describes as the issue of the “quality” of the evidence), the question of whether Ms Chan had, within the 5 years period prior to her application made in April 2016, accumulated not less than 3 years’ full-time experience in a managerial post responsible for industrial safety and health matters in respect of an industrial undertaking as stipulated in Section 1(b) of Schedule 1 was a question of fact which the AAB was required to determine based on the totality of the evidence before it.

20.It seems clear that the focus of the Commissioner’s approach was on the “documentary” evidence produced by Ms Chan, and the exercise was essentially a mechanical one.  The Commissioner worked on the basis that if Ms Chan could produce some document(s) demonstrating Relevant ISH Experience in any month, that particular month would be counted for the purpose of determining whether she satisfied the 3 Years’ Experience Requirement, but if she could not produce any relevant document for any month, that month would be discounted.  There is, however, nothing in the SMR which supports the Commissioner’s approach of looking only at the documentary evidence produced by a person seeking registration as a safety auditor for the purpose of determining whether that person can satisfy the 3 Years’ Experience Requirement.  Neither is there anything in the Guidelines which mandates that approach.  Although §3.5 of the Guidelines and the “Checklist of Supporting Documents” in the standard application form requires an applicant to provide supporting documents to show his/her actual involvement in safety and health matters, they do not suggest that the Commissioner’s consideration would be limited or restricted only to the documentary evidence produced by the applicant.  §4 of the Guidelines expressly states that an applicant may be required to attend an interview to enable the Commissioner to “clarify or find out more information relevant to processing the application for registration”.  Plainly, it is considered that an applicant’s oral explanation or elaboration at an interview can also be taken into account when assessing whether he/she can meet the Eligibility Requirements for registration as a safety auditor.  In any event, as rightly pointed out by the AAB at §9 of the Decision, the relevant criteria are set out in Schedule 1 to the SMR, and it is those criteria, properly construed, that should be applied.

21.In the present case, the AAB had before it the evidence of Ms Chan, in the form of a statement dated 9 February 2018.  In that document, Ms Chan stated that as a Construction Safety Advisor in the OPD of MTRC, her major duties were to advise, monitor, maintain and measure the safety performance and safe management system of MTRC’s contractors, and she was also required to develop, implement and maintain MTRC’s safety management system.  At §6 of her statement, Ms Chan explained in detail her personal involvement in work relating to “Safety Plan”, “Safety Audit Report”, “Safety Inspection”, “Safety Training”, “Accident Report”, “Safety Committee”, “Risk Assessment Reports” and “Safety Promotion”.  At §16, Ms Chan concluded that she believed that she had fully fulfilled the legal requirement for registration as a safety auditor because she had not less than 3 years full-time experience in a managerial post responsible for industrial health and safety matters in respect of an industrial undertaking.  The AAB also heard from Ms Chan in person.  The AAB was, in my view, entitled to have regard not only to the documentary evidence produced by Ms Chan, but also her written and oral statements, in determining whether she could satisfy the 3 Years’ Requirement.

22.It is significant that during the period of 37 months from April 2013 (right after she joined the OPD as Assistant Construction Safety Advisor) to April 2016 (the date of her application), Ms Chan was throughout working as an Assistant Construction Safety Advisor/Construction Safety Advisor in the OPD of MTRC on a fulltime basis. The updated Monthly Table prepared by the Commissioner, set out at §20 of the Form 86, suggests that Ms Chan was engaged in work which could be regarded as Relevant ISH Experience for a total of 26 months.  There is no suggestion that there was any change in the nature her work duties during the entire period of 37 months.  That this is the position is confirmed in the affirmation of Mr Lee Kwok Sing (Ms Chan’s direct supervisor in the OPD during the period from March 2013 to the date of his affirmation made in July 2019).  In that affirmation, Mr Lee states that:

(1)  Ms Chan’s work duties from the start of her employment in the OPD by MTRC have all been related to industrial safety and health matters and have remained unchanged.

(2)  Ms Chan’s duties include -

(a)  assisting project teams to monitor contractors’ implementation of safety management systems and reviewing their performance in accordance with statutory and MTRC’s requirements;

(b)  carrying out safety inspections and summarizing the inspection findings to the project teams for their remedial actions and providing safety advice;

(c)  analyzing and reviewing inspection findings;

(d)  providing advice and guidance to project teams and contractors on occupational health and safety matters, project construction safety issues and matters relating to safety management systems;

(e)  assisting project teams to uplift contractor’s safety performance;

(f)  advising contractors to achieve safety standards and uplifting their safety performance;

(g)  managing contractor emergency preparedness arrangements;

(h)  organizing safety culture development activities (including safety promotion) for the OPD and contractors to enhance their safety awareness and responsibilities and encouraging their participation in safety issues;

(i)  assisting in the identification of work hazards and evaluation of risks at work;

(j)  advising project teams and contractors on the measures to be taken to eliminate or control work hazards;

(k)  assisting in resolving safety and health issues in the OPD;

(l)  conducting accident and incident investigations and recommending remedial measures to prevent recurrence; and

(m)  communicating and providing safety professional advice to project teams, contractors and workers about any changes in the work process.

(3)  Ms Chan has continuously and personally been involved in activities associated with managing industrial safety and health matters as well as the core duty of implementing industrial safety and health programmes.

23.Since Mr Lee’s affirmation was not before the AAB, it could not have been taken into account by AAB.  Nevertheless, given (i) the absence of any suggestion that there was any change in the nature of Ms Chan’s work duties during the period from April 2013 to April 2016, and (ii) Ms Chan could demonstrate, by documentary evidence, Relevant ISH Experience for 19 months (or up to 26 months) over a period of 37 months, I consider that it was open to AAB to come to the view that Ms Chan’s Relevant ISH Experience extended over the entire period of 37 months, and reach the overall conclusion that Ms Chan had demonstrated “sufficient experience to satisfy the eligibility requirements under Schedule 1 to the SMR”[8], including the 3 Years’ Experience Requirement.

24.In passing, I should mention that, as fairly admitted by Mr Chain on behalf of the Commissioner, the point that Ms Chan had failed to produce sufficient documents to prove 36 months’ of Relevant ISH Experience in the manner that was reckoned by the Commissioner was only raised towards the end of the AAB hearing.  As Mr Lau (a member of the AAB) remarked at the hearing, that point was “a very big” one which ought to have been raised at the beginning (唔係, 如果呢個point應該一早開始講啦, 如果係話佢係冇--唔係响過managerial post, 即係post 唔符合嗰個年份嗰個要求嘅話, 呢個好大嘅point 嚟㗎喎, 呢個如果佢都唔到, 唔使審嘅囉喎).

25.In this application, Ms Chan has produced some further documents to fill up most of the gaps in the Monthly Table[9].  It would not be appropriate for this court, in the exercise of its supervisory jurisdiction in an application for judicial review, to assess the additional documents produced by Ms Chan as if it were a primary decision-maker and determine whether, if one were to adopt the approach of the Commissioner, Ms Chan could satisfy the 3 Years’ Experience Requirement.  Mr Chain submits that Ms Chan should not be permitted to rely on the additional documentary evidence at this stage, but if the court should consider the additional documents to be relevant and Ms Chan should be allowed to rely on them to prove her satisfaction of 3 Years’ Experience Requirement, the appeal (including the additional documents) should be remitted to the AAB for fresh consideration.  What this shows, in my view, is why it was unsatisfactory for the Commissioner to raise a major point regarding the proper approach to the question of how the 3 Years’ Experience Requirement should be proved at the end of the hearing before the AAB.  Had this point been clearly raised by the Commissioner prior to the hearing, Ms Chan could have produced the additional documents to the AAB for consideration, and a remittal could or might be avoided (assuming that the Commissioner’s approach is sound in law, which I do not consider to be the case).

26.As regards the suggestion that the AAB failed to consider whether the 3 Years’ Experience Requirement was satisfied from a “quantity” of evidence standpoint, the AAB was plainly aware of the Eligibility Requirements under s 1 of the Schedule 1 (including the 3 Years’ Experience Requirement under sub-paragraph (b)), which the AAB set out at §4 of the Decision.  The AAB stated, at §6 of the Decision, that the crux of the appeal was whether Ms Chan fulfilled the requirements set out in s 1(b), (c) and (e) of Schedule 1.  At §26 of the Decision, the AAB reminded itself of the requirements under Schedule 1, and stated that it had considered the “Statement”[10] and arguments by and on behalf of the Commissioner, before coming to the conclusion at §27 that Ms Chan “has demonstrated sufficient experience to satisfy the eligibility requirements under Schedule 1 to the SMR”.  Reading the Decision as a whole, I am not persuaded that the AAB failed to consider whether Ms Chan had satisfied the 3 Years’ Experience Requirement, ie that she needed to demonstrate not less than 3 years’ full-time experience in a managerial post responsible for industrial safety and health matters in respect of an industrial undertaking.

27.For the above reasons, Ground 1 of the judicial review is rejected.

GROUND 2: FAILURE TO CONSIDER THE COP

28.According to Mr Chain, Ground 2 of the judicial review is pursued as an alternative case of the Commissioner, which he describes as the Commissioner’s fallback position.

29.Mr Chain submits that[11]:

(1)  The CoP is given statutory force by s 7A(1) of the Factories and Industrial Undertakings Ordinance, Cap 59 (“the Ordinance”), which provides that the Commissioner may, for the purpose of providing practical guidance in respect of any one or more of the requirements of that Ordinance or of regulations under that Ordinance, issue such codes of practice as the Commissioner considers appropriate.

(2)  The Guidelines were issued by the Commissioner to explain Schedule 1 and follow the practical guidance in the CoP regarding managerial experience in safety management.

(3)  Accordingly, the AAB was required to consider the CoP when assessing Ms Chan’s Relevant ISH Experience.

(4)  However, as can be seen from §§11 and 18 of the Decision, the AAB did not take into account the CoP.

(5)  The AAB was clearly in error in failing to take account of the CoP, and the Decision was therefore illegal or irrational or erroneous in law, involved an improper and unjustified departure from published policy, and tainted by procedural irregularity.

30.As required by the Guidelines (the applicability of which are not in dispute), in order to prove that she had 3 years of Relevant ISH Experience (on a full-time basis) in the 5 years period immediately preceding the relevant application, Ms Chan had to demonstrate that she was personally involved in -

(1)  at least one activity (out of 4 activities, namely, (i) identifying ISH needs for the workplace, (ii) planning and developing ISH programmes, (iii) evaluating the effectiveness of such programmes, and (iv) implementing improvements to the overall programme) associated with managing ISH matters, and

(2)  the core duty of implementing ISH programmes (consisting of 14 elements[12]).

31.The CoP is issued by the Commissioner pursuant to s 7A(1) of the Ordinance.  In the Introduction to the CoP, it is stated that the aim of the code is to provide practical guidance for proprietors and contractors of relevant industrial undertakings to comply with the legal requirements under the SMR:

“It sets out, in Part 4, how proprietors or contractors should develop, implement and maintain a safe management system. It provides, in Part 5, practical guidance in respect of the 14 elements of a safety management system. It also provides, in Part 6 and Part 7, practical guidance on safety audits and safety reviews.”

32.Part 4 of the CoP sets out detailed guidance on:

(1)  how to plan and develop a safety management system (section 4.1);

(2)  how to implement a safety management system (section 4.2);

(3)  how to maintain a safety management system (section 4.3);

(4)  management model to develop, implement and maintain a safety management system (section 4.4);

(5)  application of the management model to individual elements of a safety management system (section 4.5); and

(6)  application of the management model to safety audits and safety reviews (section 4.6)

33.In order to determine whether Ms Chan had 3 years of Relevant ISH Experience, in particular whether she was personally involved in the activity of “identifying ISH needs for the workplace”, being one of the four specified activities associated with managing ISH matters relevant for the purpose of this ground of review[13], the guidance set out in Part 4 of the CoP is relevant because it would assist in the answering the question of whether Ms Chan’s work should properly be regarded as falling within the scope of “identifying ISH needs for the workplace”.

34.It is, however, important to note that the AAB did not regard the CoP as being totally irrelevant.  At §11 of the Decision, the AAB expressly recognized that CoP “may be relevant”, but considered that “an applicant should not be penalized for failing to identify how she fulfils a particular aspect in the Code of Practice in demonstrating her experience in a managerial post responsible for ISH matters”.  At §18 of the Decision, the AAB further explained that it was unfair “to require an applicant to not only comply with the published Guidelines, but to demonstrate her experience using specific activities which have to fulfill all elements of an SMS under the Code of Practice, which requirement is not part of the Guidelines”.

35.In other words, the AAB considered that the CoP should not be used to restrict the manner of proof of Relevant ISH Experience, or be taken to mean that an applicant needs to show that every item of his/her work fulfilled all elements of a safe management system under the CoP.  As correctly observed by the AAB at §19 of the Decision “it is not necessary to demonstrate for a particular piece of work that [Ms Chan] has [done] involved every element of [a safety management system].  The experience can equally well be demonstrated by separate pieces of work which may individually cover different areas”.

36.In any event, even if the AAB erred in failing to take account of the CoP in reaching the Decision when assessing Ms Chan’s Relevant ISH Experience, it is still necessary to consider what is the consequence of the AAB’s failure.  Mr Chain has helpfully prepared an “updated Table A” attached to his Skeleton Submissions indicating that, out of 54 entries of work done by Ms Chan over the period from April 2013 to April 2016, 9 entries would be affected by the failure of the AAB to take into account the CoP when assessing Ms Chan’s Relevant ISH Experience.  Mr Chain argues that those 9 entries ought to be disregarded altogether, because although they purported to be work of “identifying ISH needs for the workplace”, they involved “low level tasks only and not systemic status analysis or risk assessment.  They therefore do not amount to Relevant ISH Experience”[14].  He further argues that “fully one-sixth of the evidence used for the AAB’s broad-brush and sweeping approach were improperly taken into account.  With such a significant portion of the evidence tainted, the AAB’s failure to consider the COP must have had a material effect on the AAB’s Decision, in particular its view as to the overall adequacy/sufficiency of evidence on the 3 Years’ Requirement” [15].

37.Implicit in Mr Chain’s submission is that during the relevant period, Ms Chan had done 45 items of work which could properly be treated as Relevant ISH Experience.  When considering whether an applicant has accumulated 3 years of Relevant ISH Experience over a period of 5 years immediately preceding the relevant application, it is not necessary for the applicant to show that each and every item of work done by him/her concerned or related to at least one or more of the specified activities associated with managing ISH matters as well as the core duty of implementing all 14 elements of ISH programmes.  Even if the AAB should disregard the 9 entries of work as submitted by Mr Chain, there was still a corpus of evidence which amply justified the AAB’s conclusion that Ms Chan had 3 years of Relevant ISH Experience in the 5 years period immediately preceding her application.

38.The Commissioner has failed to demonstrate that the AAB’s failure to take account of the CoP when assessing Ms Chan’s Relevant ISH Experience would make any difference to the ultimate Decision reached by the AAB.  From a consideration of the totality of evidence, I consider it to be clear that the AAB would have reached the same conclusion even if it had taken the CoP into account.  For this reason, I do not consider that the remedy of judicial review, which is discretionary in nature, should be granted in the present case.

39.There is one other matter I should mention in passing.  The AAB expressed the view that the statutory criteria that it was required to apply were the criteria in Schedule 1, and that it would not be fair to impose additional requirements which are not referred to in the Guidelines.  As a matter of principle, the proposition that the relevant criteria are those found in Schedule 1 is correct.  The CoP cannot change or enlarge the Eligibility Requirements contained in Schedule 1, the true meaning of which is a question of construction and thus a matter of law.  However, the relevant requirement under s 1(b) of Schedule 1 (ie “a managerial post responsible for industrial safety and health matters in respect of an industrial undertaking”) is expressed in general terms, and the enabling statute, ie s 7A(1) of the Ordinance, expressly provides that the Commissioner may issue a code of conduct to give practical guidance in respect of any one or more of the requirements of (inter alia) the SMR.  That being the position, I consider that it was within the powers of the Commissioner to issue the CoP to explain or elaborate on the meaning of the requirement under s 1(b) of Schedule 1.  Of course, the CoP may be challenged on the ground of ultra vires if it exceeds the proper scope of providing “practical guidance” in respect of the requirements of the SMR, but no one has suggested that the Commissioner has acted beyond the powers conferred on him by s 7A(1) of the Ordinance in issuing the CoP.

DISPOSITION

40.I grant the Commissioner leave to apply for judicial review, on the ground that the intended application is reasonably arguable, and has a realistic prospect of success.  However, on a full consideration of the merits, I dismiss the application for judicial review.

41.On the question of costs, the AAB (as is customary in this type of cases) has not appeared or taken any part in this application.  Ms Chan, as an Interested Party, has made it plain that she adopts a neutral stance in the application, although she has put in an affirmation and attended the hearings on 20 August 2019 and 9 June 2020 to render assistance to the court.  Both parties are, I understand, agreed that there should be no order as to costs whatever the outcome of the application. I consider the common position adopted by the parties to be a sensible one on the facts of this case.  I therefore make no order as to the costs of the application.

Mr Christopher Chain, instructed by Department of Justice, for the Applicant

The Putative Respondent was absent

The Putative Interested Party appeared in person