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Hong Kong General Chamber of Commerce Equal Opportunities Commission at the Manpower Committee Roundtable Luncheon

“Equal Opportunities - Benchmark of Progress”(只備英文版)— Mr Raymond Tang, Chairperson, Equal Opportunities Commission

26/09/2006

Salutations

  1. Thank you for inviting me here today to advocate for equal opportunities. Since the Commission’s work began ten years ago, there has been a growing trend, and that is, an increasing number of people, like yourselves, who want to know more about the impact of equal opportunities. For us at the Commission, we know our work is firmly on Hong Kong’s agenda.

  2. The reason is a simple one. Equal opportunities is a benchmark of progress in a modern society. It is about respect for each other, whether you are a man or a woman, based on your ability and not disability, to create a level playing field for all to participate. We do not hold the view, nor do we advocate, that everyone should be equal; our work is aimed at ensuring access to equal opportunities, for every member in our community, irrespective of gender or state of health.

  3. As you may be well aware, the EOC is the statutory body responsible for implementing and administering the provisions of the three anti-discrimination ordinances in Hong Kong, the Sex Discrimination Ordinance, the Disability Discrimination Ordinance and the Family Status Discrimination Ordinance.

  4. The EOC’s primary functions under the three anti-discrimination ordinances are to eliminate sex discrimination, sexual harassment, family status discrimination, disability discrimination, disability harassment and vilification, and to promote equality of opportunity between men and women, between persons irrespective of family status, and between persons with and without a disability. In so doing, it must work within the parameters of the law and the framework of the legislation.

  5. The EOC has a number of functions which include :

    1. undertake investigation[1];
    2. conciliate complaints[2];
    3. provide legal assistance and litigation support in strategic cases where conciliation had failed; and
    4. promote equal opportunities through public education, research and training;
    5. publish Codes of Practice[3]; and
    6. conduct formal investigation

  6. Many would agree that our litigation role is essential to our work and elimination of discrimination. The legislation provides that, where a person has lodged a written complaint with the EOC under the EOC’s complaint handling mechanism, but settlement has failed for whatever reason, that person can apply for assistance from the EOC to take the case to court. Contrary to popular belief, we are not a ‘legal aid agency’. We do not have dedicated funding to finance our litigation work on behalf of deserving complainants, even if they have a strong case. We are obliged to work within the legal remit set by the relevant Ordinances. The EOC undertakes litigation in strategic cases on behalf of complainants to address both systemic and direct discrimination. Our litigation role is an important role. Not only does it provide individual justice, its deterrent effect has significant public education value, and it is an essential tool in our compliance work.

  7. Another major tool in eliminating discrimination is a formal investigation[4]. These may be conducted by the EOC if it thinks fit, and must be conducted if requested by the Chief Secretary for Administration.

  8. Formal investigations by the EOC do not culminate in civil or criminal prosecutions. Rather, the EOC may, either in the course of a formal investigation or at it conclusion, make recommendations to persons for changes in their policies or procedures or to the Chief Secretary for Administration recommending changes in the law. The EOC is required to prepare a report of its findings and the findings are made public. What I would like to emphasize is that, although a formal investigation may not result in prosecutions, the conduct of a formal investigation sends a very strong message to the community. The value or outcome from a formal investigation should not be under-estimated. Apart from its force of moral persuasion, a finding of discriminatory conduct or practices on the part of those targeted would establish a strong basis for the pursuit of civil proceedings in tort. I venture to suggest that it would be somewhat unwise for those affected to disregard recommendations offered by the EOC.

  9. In 1998, the EOC conducted a formal investigation on the Secondary School Allocation (SSPA) system[5]. This year, we are working on a formal investigation on accessibility in public housing estates in Hong Kong to improve the quality of life for persons with a disability.
  10. As a member of the Hong Kong General Chamber of Commerce, you may rest assured that the business sector is a major stakeholder for, and partner of the Commission. The EOC has the power to publish codes of practice under each of the Ordinances, containing practical guidance for the purposes of eliminating discrimination, promoting equality of opportunity and eliminating sexual harassment and disability harassment. These codes of practice may cover any of the prescribed fields: employment, education, provision of goods, services and facilities and so on. There are statutory provisions requiring the EOC to undertake consultations in respect of COPs it proposes to issue. For example, under the SDO, where a code deals with employment, the EOC is required to consult with employee and employer groups and any other organizations which the EOC considers appropriate.

  11. Codes of practice may include such practical guidance as the EOC thinks fit as to what steps it is reasonably practicable for employers to take for the purpose of preventing their employees from committing unlawful acts. Employers may have a defence against vicarious liability, if they can show that they have taken all reasonably practicable steps to prevent such unlawful acts from happening, such as following the suggestions offered in a relevant code of practice.

  12. To date, the EOC has issued a Code of Practice on Employment under each Ordinance, and a Code of Practice on Education under the DDO. Before long, we shall commence preparing (and consulting with our partners and stakeholders) on a code of practice on employment for the proposed race discrimination legislation.

  13. Currently, three pieces of anti-discrimination legislation are enforced in Hong Kong covering a number of fields of activities. Yet close to 80% of our complaints are employment related. Clearly, guidance should be provided for businesses to improve understanding of the ordinances, and assist employers and employees in implementing good management practices that they need to comply with the law. With this in mind, we launched a new initiative a few months ago, the “Equal Opportunities Club”. By this initiative, we hope to introduce the concept of “EO officers” in commercial corporations and other organizations (and, hopefully, SMEs as well). Much like privacy officers in the data protection regime, we believe that an “EO officer” in a business is an essential component of sound human resource management. It will certainly contribute towards raising compliance level. What is more important, it will assist the business in projecting to its workforce the image of an employer of choice, and to the broader community that this business is a business that recognizes its social responsibility. It will make for a brand that a competitor will envy. So far, I am glad to say, we have recruited about 150 members, many of whom work in major companies, smaller enterprises, government departments and universities.

  14. Equal opportunity is an essential aspect of business. We are talking about getting the right person for the right job, increasing productivity and competitiveness. This means creating a better working environment to retain talent. Our Commission, together with the Women’s Commission invited Lingnan University to undertake a research project on “Family-friendly Employment Policies and Practices”. 137 companies with a combined workforce of 160,000 took part in the survey. We know this is a new subject for most employers in Hong Kong, so although about 90% of the respondents did not have in place formal policies or guidance for family friendly employment policies, for those that did adopt such practices, such as flexi-time and five-day work week, the benefits were many. The top 5 benefits cited were :

    • gained reputation of being an employer of choice;
    • improved morale;
    • increased ability to attract high-performing and experienced employees;
    • improved working relationships among colleagues; and
    • reduced turnover.
     

    As successful businessmen and businesswomen, you know that family friendly employment policies are worth investing in.

  15. We initiated the study on family friendly policies some time back because we saw that the traditional family as we know of it in Hong Kong was evolving. Support was needed for those with parenting and caring roles in an ever-changing world.

  16. Lately, we have seen continuing developments in the media which have sparked off a heated public debate regarding, how women are portrayed in our society. I am not singling out the media for my observations. Clearly there is a bigger picture that we need to look at. Questions have been raised in our community about the value of our social culture, which defines the quality of our society. The Commission’s work is about social change, promoting a mindset that is consistent with our sense of dignity. While we recognize that values do not always stand the test of time, one must remind oneself about progress, with the aim for improvement and betterment of the next generation. After all, what is human dignity? At the very least, it is about according respect to our fellow men and women.

  17. As we all know, we are about to have a new piece of legislation to cover race discrimination. According to our understanding, “race” under the proposed legislation means race, colour, decent or national or ethnic origin of the person.

  18. Following the existing anti-discrimination ordinances, the proposed race law renders protection to people against unlawful discrimination in the following areas of activities :

    1. employment
    2. education
    3. provisions of goods, services and facilities
    4. disposal or management of premises
    5. eligibility to vote for and to be elected or appointed to advisory bodies
    6. participation in clubs
    7. activities of the Government
  19. It has been proposed that, an act done by a person in the course of his or her employment may render both that person and his or her employer liable. Similarly, an act done by a person as agent for another may render both the agent and principal liable. Employers are legally responsible for the actions of their employees, done in the course of their employment, whether or not these were done with the employer’s knowledge or approval.

  20. We understand there may be some exceptions regarding discrimination by employers under the new law, e.g. where the race of a person is a genuine occupational qualification for the job; where the employment in question in intended to provide training in skills to be exercised outside Hong Kong; where a person, who is not a permanent resident of Hong Kong, is recruited or transferred from a place outside Hong Kong for employment because of his special skills, knowledge or experience not readily in Hong Kong. Exceptions are also provided for existing employment on local and overseas terms of employment. No doubt the Chamber has provided its views and observations to the government. For our part, we will work with you on the construction of the COPs.

  21. The basic concept remains unchanged: i.e. people should not be treated differently on the prohibited grounds unless there are justifiable reasons, statutory or otherwise. Needless to say, you can always contact the Commission for whatever help you need regarding compliance of the new law.

Thank you.

Equal Opportunities Commission, Hong Kong


[1] Apart from investigating into complaints lodged by individuals, the EOC also undertakes self-initiated investigations arising from its own observations or information from other sources, such as NGOs. Complaint-based investigation may lead to conciliation, and often a conciliated settlement of the dispute.

[2] Conciliation is a prescribed step in the relevant statutory process. Recently, in an effort to promote early resolution of disputes prior to the parties’ respective positions becoming entrenched in an investigation, the EOC is seeking to encourage complainants and respondents to attempt ‘early’ conciliation in an informal manner.

[3] There are provisions in the ordinances governing the requirement to consult with relevant parties prior to the issuance of a code of practice. The EOC attaches great importance to such consultation process and regards it as an essential aspect in its work to promote compliance amongst the affected sectors of the community.

[4] ‘Formal Investigation’ is a statutory process with its own prescribed procedure. It should be distinguished from the complaint-based investigation discussed earlier.

[5] In the Hong Kong Law Report & Digest Centenary Supplement, the SSPA case was selected as one of the 10 most important cases in HKLR and HKLRD.

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