Define 'reasonable excuses', employers ask

PUBLISHED : Wednesday, 28 October, 2009, 12:00am
UPDATED : Wednesday, 28 October, 2009, 12:00am

Employers want the government to spell out the 'reasonable excuses' that will save them from prosecution for failing to hand over unpaid wages, but officials said yesterday it was difficult to do so.

Lawmakers representing business sectors criticised the administration for failing to clearly define 'reasonable excuse', the defence available to an employer facing prosecution for ignoring orders to repay outstanding salaries under a proposed amendment to the Employment Ordinance. The 17 members of the Legislative Council's bills committee continued their scrutiny of the amendment yesterday.

It proposes to make it a criminal offence for employers to ignore orders from the Labour Tribunal or Minor Employment Claims Adjudication Board to settle outstanding salaries or benefits to workers.

Under the current proposal, it would be an offence for an employer to wilfully and without reasonable excuse fail to pay any sum awarded by the Labour Tribunal within 14 days from the date of the award.

Andrew Leung Kwan-yuen, a lawmaker representing the industrial sector, said it was unacceptable that the amendment failed to elaborate on what an acceptable 'reasonable excuse' was.

'It is unacceptable for failing to give a definition,' he said. 'It would be difficult for the authorities to say whether or not to prosecute some employers. That's unfair to small and medium-sized enterprises and employers.'

Assistant Commissioner for Labour Bryon Ng Kwok-keung said the circumstances of late payment of wages varied significantly from case to case, adding that an excuse might be reasonable in one case but unreasonable in another.

He said the amendment targeted employers who were not in financial difficulty but were unwilling to pay.

Betty Cheung Yuet-wah, a senior assistant law draftsman from the Department of Justice, said it would be difficult for the administration to list all the reasonable excuses under the proposed amendment.

'It would be difficult to make a judgment which employers and employees both agree with certain elaborations. And it is difficult to cover all possibilities,' she said.

The amendment proposes penalties of up to HK$350,000 and three years' jail for employers. Between July last year and May this year, the Labour Department received more than 2,800 requests for help from workers whose employers ignored rulings by the tribunal or the board.

The government said the creation of the new offence would provide a strong deterrent and send a clear message to the community that defaulting on tribunal awards was a serious offence.