To provide for the establishment of a board to administer the Protection of Wages on Insolvency Fund, to provide for payment of monies from the Fund to employees whose employers become insolvent; and for matters connected therewith or incidental thereto. (Enacted 1985) [19 April 1985] L.N. 100 of 1985 (Originally 12 of 1985) Cap 380 s 1 Short title PART I PRELIMINARY This Ordinance may be cited as the Protection of Wages on Insolvency Ordinance. (Enacted 1985) Cap 380 s 2 Interpretation In this Ordinance, unless the context otherwise requires- "applicant" (申请人) means any person who would, on the winding up of a company, be entitled to priority under section 265(1)(b), (c), (ca) or (cc) of the Companies Ordinance (Cap 32) or who would, on a bankruptcy, be entitled to priority under section 38(1)(b), (c), (ca) or (cc) of the Bankruptcy Ordinance (Cap 6) other than a person whose employer is an individual and who is a member of the family of that employer and who dwells in the same dwelling as that employer; (Amended 48 of 1987 s. 2; 38 of 1989 s. 2) "bankruptcy petition" (破产呈请) means a bankruptcy petition under the Bankruptcy Ordinance (Cap 6); "Board" (委员会) means the Protection of Wages on Insolvency Fund Board established by section 3; "Commissioner" (处长) means the Commissioner for Labour; "company" (公司) means any body which is liable to be wound up under the Companies Ordinance (Cap 32); "Fund" (基金) means the Protection of Wages on Insolvency Fund referred to in section 6; "financial year" (财政年度) means the financial year of the Fund fixed under section 8; "levy" (征费) has the meaning assigned to it by section 2 of the Business Registration Ordinance (Cap 310); "mandatory provident fund scheme" (强制性公积金计划) means a mandatory provident fund scheme registered under the Mandatory Provident Fund Schemes Ordinance (Cap 485); (Added 4 of 1998 s. 12) "occupational retirement scheme" (职业退休计划) means a scheme or arrangement under which benefits, based on length of service, are payable in respect of employees on retirement, death, incapacity or termination of service, but does not include a mandatory provident fund scheme; (Added 4 of 1998 s. 12) "severance payment" (遣散费) means a severance payment in respect of which an applicant would, on the winding up of a company, be entitled to priority under section 265(1)(ca) of the Companies Ordinance (Cap 32) or would, on a bankruptcy, be entitled to priority under section 38(1)(ca) of the Bankruptcy Ordinance (Cap 6), save that the amount specified in section 265(1)(ca) of the Companies Ordinance (Cap 32) or section 38(1)(ca) of the Bankruptcy Ordinance (Cap 6) (as the case may be) as the maximum amount in respect of which an applicant would be entitled to priority, or any amount substituted therefor under section 265(1B) of the Companies Ordinance (Cap 32) or section 38(2B) of the Bankruptcy Ordinance (Cap 6) (as the case may be), shall not apply; (Replaced 5 of 1994 s. 2) +"wages" (工资) means wages or salary in respect of which an applicant would, on the winding up of a company, be entitled to priority under section 265(1)(b) or (c) of the Companies Ordinance (Cap 32) or who would, on a bankruptcy, be entitled to priority under section 38(1)(b) or (c) of the Bankruptcy Ordinance (Cap 6), save that the amount specified in section 265(1)(b) or (c) of the Companies Ordinance (Cap 32) or section 38(1)(b) or (c) of the Bankruptcy Ordinance (Cap 6) (as the case may be) as the maximum amount in respect of which an applicant would be entitled to priority, or any amount substituted therefor under section 265(1A) or (1B) of the Companies Ordinance (Cap 32) or (as the case may be) section 38(2), (2A) or (2B) of the Bankruptcy Ordinance (Cap 6), shall not apply; (Amended 15 of 1993 s. 2) +"wages in lieu of notice" (代通知金) means wages in lieu of notice in respect of which an applicant would, on the winding up of a company, be entitled to priority under section 265(1)(cc) of the Companies Ordinance (Cap 32), or would, in a bankruptcy, be entitled to priority under section 38(1)(cc) of the Bankruptcy Ordinance (Cap 6), save that the amount specified in section 265(1)(cc) of the Companies Ordinance (Cap 32) or section 38(1)(cc) of the Bankruptcy Ordinance (Cap 6) (as the case may be) as the maximum amount in respect of which an application would be entitled to priority shall not apply; (Added 48 of 1987 s. 2. Amended 15 of 1993 s. 2) "winding-up petition" (清盘呈请) means a winding-up petition under Part V or Part X of the Companies Ordinance (Cap 32). (Enacted 1985. Amended 4 of 1998 s. 12)_________________________________________________________________________________ Note: + See also s. 4 of 15 of 1993. Cap 380 s 3 Establishment and incorporation of Wages on Insolvency Fund Board Remarks: Adaptation amendments retroactively made - see 54 of 2000 s. 3 PART II PROTECTION OF WAGES ON INSOLVENCY FUND BOARD (1) There is hereby established a board to be known as the Protection of Wages on Insolvency Fund Board and in the Chinese language as "破产欠薪保障基金委员会" which shall be a body corporate. (2) The Board shall consist of a Chairman appointed under the Schedule and not more than 10 members appointed by the Chief Executive as follows- (Amended 54 of 2000 s. 3) (a) subject to paragraph (b) not more than 4 public officers; (b) equal numbers of persons who, in his opinion, represent employers and persons who, in his opinion, represent employees.(3) The Chief Executive shall give notice of each appointment by notice in the Gazette. (Amended 54 of 2000 s. 3) (4) The Schedule shall have effect with respect to the Board. (Enacted 1985) Cap 380 s 4 Functions and powers of the Board Remarks: Adaptation amendments retroactively made - see 54 of 2000 s. 3 (1) The Board shall have the following functions- (a) to administer the Fund; (b) to make recommendations to the Chief Executive with respect to the rate of levy; and (Amended 54 of 2000 s. 3) (c) to perform such other duties as are imposed or other powers as are conferred on it by this Ordinance.(2) The Board may do all such things as are necessary for, or incidental or conducive to, the better carrying out of the functions of the Board and may in particular, but without prejudice to the generality of the foregoing- (a) hold, acquire or lease all kinds of property whether movable or immovable; (b) sell or otherwise dispose of all kinds of property whether movable or immovable; (c) subject to section 10, invest its funds in such manner and to such extent as it thinks necessary or expedient; and (d) with the prior consent of the Financial Secretary, borrow money in such manner and on such securities or terms as it thinks expedient. (Enacted 1985) Cap 380 s 5 Board to be subject to directions of the Chief Executive in Council Remarks: Adaptation amendments retroactively made - see 54 of 2000 s. 3 The Chief Executive in Council may give to the Board such directions as he thinks fit with respect to the exercise of its functions under this Ordinance and the Board shall comply with any such direction. (Enacted 1985. Amended 54 of 2000 s. 3) Cap 380 s 6 Establishment of Protection of Wages on Insolvency Fund PART III FUND The fund known as the Protection of Wages on Insolvency Fund established under the provisions of section 21 of the Business Registration Ordinance (Cap 310) in force immediately before the commencement of this Ordinance shall be deemed to be established and continue in existence under this section, and shall consist of- (a) moneys that are paid by the Commissioner of Inland Revenue under that section whether paid before or after the commencement of this Ordinance; (b) moneys recovered under Part VI; (c) interest and other income derived from the moneys and investments comprising the Fund; and (d) other moneys lawfully paid into the Fund. (Enacted 1985) Cap 380 s 7 Payments from the Fund There shall be paid from the Fund the following- (a) payments to applicants under section 16; (b) expenses incurred by the Board for the purposes of this Ordinance; (c) capital, interest and charges in respect of any loan; and (d) any other sums required or permitted to be paid by the Fund under this Ordinance. (Enacted 1985) Cap 380 s 8 Financial year and estimates Remarks: Adaptation amendments retroactively made - see 54 of 2000 s. 3 PART IV FINANCIAL PROVISIONS (1) The Board may, from time to time, with the prior approval of the Chief Executive, fix a period to be the financial year of the Fund. (2) In each financial year, before a date to be fixed by the Chief Executive, the Board shall submit to the Chief Executive, for his approval, estimates of the income and expenditure of the Fund for the next financial year: Provided that the estimates for the first financial year of the Fund shall be submitted as soon as practicable after the commencement of this Ordinance. (3) The Chief Executive shall consider the estimates submitted to him under subsection (2) and may approve or reject them and, in the case of rejection, may require the Board to resubmit the estimates modified in such manner and within such time as the Chief Executive may direct. (4) The Board may, from time to time, vary the estimates approved under subsection (3) and shall, as soon as practicable, deliver to the Chief Executive a statement in writing containing details of any variation. (Enacted 1985. Amended 54 of 2000 s. 3) Cap 380 s 9 Bank account The Board shall open and maintain an account with a bank approved by the Financial Secretary and shall pay all moneys of the Fund into that account. (Enacted 1985) Cap 380 s 10 Investment of moneys All moneys of the Fund that are not immediately required by the Board may be- (a) deposited on fixed term or call deposit or in a savings account in any bank within the meaning of section 2 of the Banking Ordinance (Cap 155); or (Amended 49 of 1995 s. 53) (b) with the prior approval of the Financial Secretary, invested in such other investments as the Board thinks fit. (Enacted 1985) Cap 380 s 11 Accounts The Board shall- (a) keep and maintain such accounts and records of all transactions of the Fund as the Director of Accounting Services may require; and (b) after the end of each financial year cause to be prepared a statement of the accounts of the Fund which shall include an income and expenditure account and balance sheet and shall be signed by the Chairman. (Enacted 1985) Cap 380 s 12 Auditors (1) The Board shall at the commencement of each financial year appoint auditors, who shall be entitled to have access to all books of account, vouchers and other records kept by the Board and to require such information and explanations as they may think fit. (2) The auditors shall audit the statement of accounts prepared under section 11 and shall report thereon to the Board. (Enacted 1985) Cap 380 s 13 Statements and reports to be laid on table of Legislative Council Remarks: Adaptation amendments retroactively made - see 54 of 2000 s. 3 (1) The Board shall, within 6 months after the end of each financial year or such further time as the Chief Executive may for any particular year allow, submit to the Chief Executive a report on the activities of the Board for that financial year including copies of the statement of accounts prepared under section 11 and the report made under section 12. (2) The Chief Executive shall cause the reports and statements received by him under subsection (1) to be laid on the table of the Legislative Council. (Enacted 1985. Amended 54 of 2000 s. 3) Cap 380 s 14 Costs of administering the Fund (1) All costs and expenses incurred by the Government in administering the Fund shall be a charge upon general revenue. (2) The Financial Secretary may direct that a supervision fee to be determined by him, in relation to such period as may be determined by him, shall be charged against the income of the Fund and shall at a time determined by him be paid to him by the Board from the Fund and paid by him into general revenue. (Enacted 1985) Cap 380 s 15 Entitlement to apply for ex gratia payment PART V PAYMENT FROM THE FUND (1) Subject to this Part, an applicant to whom- (a) wages are due and unpaid; (b) wages in lieu of notice are due and unpaid; or (c) the liability to be paid a severance payment has arisen and the severance payment is unpaid, whether or not the severance payment is then due,may apply for an ex gratia payment from the Fund in respect of the wages, wages in lieu of notice or the severance payment, as the case may be, or all or any of them. (Replaced 38 of 1989 s. 3) (2) An application under subsection (1) (in this Part called an "application" (申请)) shall be made to the Commissioner in writing in a form approved by him. (Amended 48 of 1987 s. 3) (3) No applicant shall apply for payment from the Fund in respect of any wages for services rendered before 1 April 1985. (4) No applicant shall apply for payment from the Fund in respect of wages in lieu of notice arising out of a contract of employment terminated before the commencement of the Protection of Wages on Insolvency (Amendment) Ordinance 1987 (48 of 1987). (Added 48 of 1987 s. 3) (5) No applicant shall apply for payment from the Fund in respect of a severance payment the liability for payment of which arose before the commencement of the Protection of Wages on Insolvency (Amendment) Ordinance 1989 (38 of 1989). (Added 38 of 1989 s.3) (Enacted 1985) Cap 380 s 16 Payment (1) Subject to subsections (1B) and (2) where it appears to the Commissioner that an employer has failed to pay any wages, wages in lieu of notice or severance payment, as the case may be, or all or any of them to an applicant and that- (a) in the case of an employer who is not a company- (i) a bankruptcy petition has been presented against him; or (ii) he would, but for the existence of section 6(2)(a) of the Bankruptcy Ordinance (Cap 6), be liable to have a bankruptcy petition presented against him; or (Replaced 76 of 1996 s. 84)(b) in the case of an employer who is a company, a winding-up petition has been presented against that employer,he may make an ex gratia payment to the applicant out of the Fund of the amount of the wages, wages in lieu of notice or severance payment, as the case may be, or all or any of them. (1A) When the Commissioner makes a payment under subsection (1)(a)(ii), he shall give notice of the payment and the reasons therefor in the Gazette. (Added 41 of 1988 s. 2) (1B) Where an application has been made in respect of a severance payment which is not due at the date of the application, the Commissioner may defer consideration of the application until the severance payment becomes due. (Added 38 of 1989 s. 4) (2) The Commissioner shall not make any payment under subsection (1)- (a) to the applicant unless the applicant has verified his application by a statutory declaration in a form approved by the Commissioner;@(b) of an amount exceeding $36000 in respect of wages; (Replaced 15 of 1993 s. 3. Amended L.N. 63 of 1996) (c) (Repealed 15 of 1993 s. 3) (d) in respect of wages- (i) for services rendered more than 4 months prior to an applicant's last day of service; or (ii) for which an application is made to the Fund more than 6 months after the applicant's last day of service; (Replaced 68 of 1996 s. 2)(e) in respect of wages in lieu of notice- (i) of an amount exceeding- (A) the equivalent of 1 month's wages of the applicant; or @(B) $22500, (Amended L.N. 63 of 1996) whichever is the lesser; or (Amended 15 of 1993 s. 3)(ii) subject to subsection (2A), which became due more than 6 months prior to the date of application; or (Replaced 38 of 1989 s. 4. Amended 68 of 1996 s. 2) (f) in respect of a severance payment- #(i) of an amount exceeding the aggregate of $50000 and half of that part of the applicant's entitlement to severance payment in excess of $50000; or (Replaced 45 of 1991 s. 3. Amended L.N. 332 of 1995; L.N. 63 of 1996; L.N. 34 of 1999) (ii) the liability for payment of which arose more than 6 months prior to the date of application. (Added 38 of 1989 s. 4. Amended 68 of 1996 s. 2)(2A) Subsection (2)(e)(ii) shall not apply to wages in lieu of notice arising out of a contract of employment terminated before the commencement of the Protection of Wages on Insolvency (Amendment) Ordinance 1989 (38 of 1989). (Added 38 of 1989 s. 4) (2B) (a) Where it appears to the Commissioner that- (i) an applicant's wages have been reduced during the period of 12 months immediately before he is dismissed or laid off; and (ii) before the wage reduction took effect, the employer of the applicant had given an undertaking to the applicant to the effect that if the applicant was dismissed or laid off after the wage reduction, the severance payment payable to him would be calculated in a manner more favourable to him than that provided for in section 31G of the Employment Ordinance (Cap 57), then, for the purposes of subsection (2)(f)(i), the applicant's entitlement to severance payment may, if it is more favourable to the applicant, be calculated- (A) subject to paragraph (c), in accordance with section 31G of the Employment Ordinance (Cap 57); or (B) in the manner specified in the undertaking, whichever results in a lesser amount. (b) If the calculation under paragraph (a)(A) and that under paragraph (a)(B) result in the same amount, the applicant's entitlement to severance payment for the purposes of subsection (2)(f)(i) shall be that amount. (c) For the purposes of paragraph (a)(A) and in relation to the applicant- (i) "his last full month's wages" in section 31G(1)(a) of the Employment Ordinance (Cap 57) shall be construed to mean his full month's wages immediately before the wage reduction took effect; (ii) "his last 30 normal working days" in section 31G(1)(b) of that Ordinance shall be construed to mean his 30 normal working days immediately before the wage reduction took effect; and (iii) "the relevant date" in section 31G(2) of that Ordinance shall be construed to mean the date when the wage reduction took effect.(d) If a wage reduction in respect of which an undertaking as described in paragraph (a)(ii) has been given has occurred in relation to an applicant more than once during the period of 12 months immediately before he is dismissed or laid off- (i) "the undertaking" in paragraph (a)(B) shall be construed to mean the undertaking which is the most favourable to the applicant among those given to him during that period; (ii) "the wage reduction" in paragraph (c)(i), (ii) and (iii) shall be construed to mean the wage reduction in respect of the applicant's highest wage level in that period. (Added 77 of 1999 s. 2)(3) The Legislative Council may by resolution amend the period specified in subsection (2)(e)(i)(A) or the amount specified in subsection (2)(b), (e)(i)(B) or (f)(i). (Added 48 of 1987 s. 4. Amended 15 of 1993 s. 3) (4) For the purposes of this section, "last day of service" (服务的最后一天) means the last day on which an applicant renders services to an employer who fails to pay him wages to which his application relates. (Added 68 of 1996 s. 2) (Amended 48 of 1987 s. 4; 38 of 1989 s. 4)_________________________________________________________________________________ Note: Subsection (2B) of this section was added by Ord. No. 77 of 1999. For transitional provisions, see s. 3 of that Ordinance. @ For transitional provisions, see paras. (b) and (c) of L.N. 63 of 1996. # For transitional provisions, see paras. (2) and (3) of L.N. 34 of 1999. Cap 380 s 17 Review by Board (1) Any applicant aggrieved by any decision of the Commissioner under section 16 may in writing- (a) request the Commissioner to give reasons for that decision; and (b) after being given reasons under paragraph (a), request the Commissioner to refer the application to the Board.(2) Upon receiving a request from an applicant under subsection (1)(b), the Commissioner shall forward all documents relating to the application to the Chairman of the Board. (3) The Board may confirm or vary any decision of the Commissioner on an application referred to it under this section or may for those purposes require the Commissioner to make further inquiries relating to the application. (Enacted 1985) Cap 380 s 18 Additional power of Commissioner (1) Notwithstanding that in any particular case a petition referred to in section 16(1)(a)(i) or (b) has not been presented against an employer, the Commissioner may, subject to subsection (2) of that section, make an ex gratia payment under that section in that case if in his opinion- (Amended 41 of 1988 s. 3) (a) the employer employs less than 20 employees; (b) sufficient evidence exists to support the presentation of a petition in that case on the ground- (i) if the employer is a company, that he is unable to pay his debts; or (ii) if the employer is a person other than a company, that he is liable to have a bankruptcy petition presented against him; and (Amended 37 of 1998 s. 7)(c) it is unreasonable or uneconomic to present a petition in that case.(2) Where the Commissioner exercises his discretion under subsection (1) to make payment, he shall give notice in the Gazette stating that, in his opinion, sufficient evidence exists to support the presentation of a petition on the ground- (a) if the employer is a company, that he is unable to pay his debts; or (b) if the employer is a person other than a company, that he is liable to have a bankruptcy petition presented against him. (Amended 37 of 1998 s. 7)(3) Nothing in subsection (2) shall require the Commissioner to give more than one notice in respect of each employer. (4) No action shall lie against the Commissioner in respect of any notice given under subsection (2). (Enacted 1985) Cap 380 s 19 Verification of application (1) For the purpose of verifying any application under section 15, or if so required by the Board under section 17(3), the Commissioner may make such inquiries as he thinks fit and may in particular, but without limiting the generality of the foregoing and without prejudice to any powers of the Commissioner under any other Ordinance- (a) interview the applicant and any other employee; (b) by notice in writing require the applicant or any other person having possession thereof to produce to the Commissioner for his inspection any record, book of account, or other document as may, in the opinion of the Commissioner, be necessary to verify the application; (c) by notice in writing require any person whom he reasonably believes to have possession thereof to produce to the Commissioner for his inspection any register, record or other document required to be kept by an employer under the Employment Ordinance (Cap 57); and (d) by notice in writing require the employer to whom the application relates or any servant, agent or employee of that employer to attend before him and to answer questions put by him.(2) Any notice served by the Commissioner imposing any requirement under this section, shall state the time when and place where the person to whom the notice is given shall comply with that requirement. (3) Any notice to be served on any person under this section may be served by post. (4) In relation to the Commissioner's powers under subsection (1) to make inquiries- (a) any person required to answer questions shall have, in relation to any answer thereto, such privileges as he would have had, had such question been asked in a court but shall otherwise answer any such question; (b) the Commissioner shall proceed as informally as possible and may determine the procedure to be followed. (Enacted 1985) Cap 380 s 20 Decisions under this Part not to be challenged No decision of the Commissioner or the Board made in exercise of any discretion under this Part shall be challenged in any Court. (Enacted 1985) Cap 380 s 21 Power of Commissioner to delegate (1) The Commissioner may, in writing, authorize any officer of the Labour Department to exercise any of his powers or perform any of his duties under this Part. (2) In this Part but not in subsection (1) "Commissioner" (处长) includes any person authorized by the Commissioner under this section. (Enacted 1985) Cap 380 s 22 Payment not to affect right to legal aid Any right of an applicant to receive legal aid under the Legal Aid Ordinance (Cap 91) shall not be affected by any payment made under section 16 if the purpose of such legal aid is to assist the applicant to recover any further amount due to him under any contract of employment or under the Employment Ordinance (Cap 57). (Enacted 1985) Cap 380 s 23 Proof by certificate (1) A document purporting to be under the hand of the Commissioner stating that- (a) on the date specified therein the sum of money stated therein was paid from the Fund to the person named therein; and (b) immediately before that date the employer named therein owed to that person the amount of wages, wages in lieu of notice or severance payment, as the case may be, or all or any of them, specified therein in respect of the period or periods stated therein, (Replaced 38 of 1989 s. 5)shall be admissible in any proceedings on its production and without further proof and, until the contrary is proved or unless it be shown that the document was not under the hand of the Commissioner, shall be prima facie evidence of the facts stated therein. (Replaced 48 of 1987 s. 5) (2) In this section "proceedings" (法律程序) includes the lodging of a proof of debt in any bankruptcy or winding-up. (Enacted 1985) Cap 380 s 24 Subrogation PART VI RECOVERY OF PAYMENTS (1) Where a payment is made under section 16 to an applicant in respect of wages due to him, or in respect of any liability to pay him a severance payment, whether or not the severance payment is due when that payment under section 16 is made, all his rights and remedies with respect to those wages or severance payment, as the case may be, existing immediately before that payment under section 16 shall, to the extent of the amount of that payment under section 16, be transferred to and vest in the Board for the benefit of the Fund and the Board may take such steps as it considers necessary to enforce those rights and remedies. (2) The rights and remedies of an applicant in respect of a severance payment transferred to and vested in the Board pursuant to subsection (1) shall include the rights and remedies of the applicant in respect of so much of that severance payment as the applicant would, on the winding up of a company, be entitled to priority under section 265(1)(ca) of the Companies Ordinance (Cap 32) or would, on a bankruptcy, be entitled to priority under section 38(1)(ca) of the Bankruptcy Ordinance (Cap 6). (Replaced 45 of 1991 s. 4. Amended L.N. 210 of 1994) (2A) Where- (a) the amount of any wages due to an applicant exceeds the amount of any payment made to him under section 16 in respect of those wages, nothing in this section shall affect the rights or remedies of the applicant in respect of the amount of the excess; (b) the amount of any liability in respect of the payment to an applicant of a severance payment exceeds the amount of any payment made to him under section 16 in respect of the severance payment, the rights or remedies of the applicant in respect of the amount of the excess shall be subject to the rights and remedies of the applicant in respect of the severance payment transferred to and vested in the Board pursuant to subsection (1). (Added 45 of 1991 s. 4)(2B) If- (a) an applicant is entitled to a payment under an occupational retirement scheme or is a person for whom accrued benefits in a mandatory provident fund scheme are held; and (b) an ex gratia payment in the form of a severance payment is made to the applicant under section 16,the applicant's rights and remedies are, to the extent of the amount of the ex gratia payment, transferred to, and vested in, the Board for the benefit of the Fund. The Board may take such steps as it considers necessary to enforce those rights and remedies. (Replaced 4 of 1998 s. 12) (2C) Subsection (2B) applies to a payment under an occupational retirement scheme or to the accrued benefits held in a mandatory provident fund scheme only to the extent that the payment is, or the benefits are, attributable to contributions made to the scheme by the employer who was liable to pay the relevant severance payment to the applicant. (Replaced 4 of 1998 s. 12) (3) In this section "wages" (工资) includes wages in lieu of notice. (Added 48 of 1987 s. 6) (Enacted 1985. Amended 38 of 1989 s. 6)_________________________________________________________________________________ Note: For transitional provision respecting severance payments, see s. 5 of 45 of 1991. Cap 380 s 25 Recovery of payment made by mistake Where- (a) any payment is made to any person from the Fund under a mistake of law or fact; or (b) notwithstanding that no person has been charged with or convicted of an offence under section 26, any payment is made to any person, in respect of an application that is false in any material particular,such payment shall be recoverable by the Board from the recipient thereof as a debt due to the Board. (Enacted 1985) Cap 380 s 26 Offences PART VII MISCELLANEOUS (1) Any person who- (a) in providing information for the purposes of this Ordinance including any inquiry thereunder, makes any statement which he knows to be false in a material particular or recklessly makes a statement which is false in a material particular; or (b) for the purposes of this Ordinance including any inquiry thereunder and with intent to deceive, produces, supplies or sends, or otherwise makes use of, any document or record which is false in a material particular,commits an offence and is liable to a fine of $50000 and to imprisonment for 3 months. (2) Any person who, without reasonable excuse, fails to comply with any requirement imposed by the Commissioner under section 19(1) or (4) commits an offence and is liable to a fine of $5000 and to imprisonment for 1 month. (3) Without prejudice to any Ordinance relating to the prosecution of offences or to the powers of the Secretary for Justice in respect of the prosecution of criminal offences, a prosecution for any offence under this Ordinance may be brought in the name of the Commissioner and commenced and conducted by an officer of the Labour Department authorized in that behalf in writing by the Commissioner. (Amended L.N. 362 of 1997) (4) Where a complaint is made or an information laid for an offence under this Ordinance by the Commissioner or any officer authorized under subsection (3), the complainant or informant shall be deemed to be acting on behalf of the Secretary for Justice. (Amended L.N. 362 of 1997; 23 of 2002 s. 5) (Enacted 1985) Cap 380 s 27 Regulations Remarks: Adaptation amendments retroactively made - see 54 of 2000 s. 3 The Chief Executive in Council may by regulations- (Amended 54 of 2000 s. 3) (a) prescribe anything required or permitted to be prescribed under this Ordinance; (b) provide for the better carrying into effect of the provisions of this Ordinance. (Enacted 1985) Cap 380 s 28 Power of Chief Executive to amend Schedule Remarks: Adaptation amendments retroactively made - see 54 of 2000 s. 3 The Chief Executive may by notice in the Gazette amend the Schedule. (Enacted 1985. Amended 54 of 2000 s. 3) Cap 380 s 29 Transitional (1) The Protection of Wages on Insolvency (Amendment) Ordinance 1987 (48 of 1987) ("the amending Ordinance" (该修订条例)) shall apply to and in relation to any payment to be made in accordance with section 38 of the Bankruptcy Ordinance (Cap 6), or section 265 of the Companies Ordinance (Cap 32), after the commencement of the amending Ordinance, notwithstanding that any debt to which such payment relates was incurred before that commencement. (Amended 68 of 1996 s. 3) (2) Section 2 of the Protection of Wages on Insolvency (Amendment) Ordinance 1996 (68 of 1996) shall not apply to an application under section 15(1) made to the Commissioner before the commencement* of that Ordinance. (Added 68 of 1996 s. 3) (Incorporated 48 of 1987 s. 9)_________________________________________________________________________________ Note: * Commencement date: 6 December 1996. Cap 380 SCHEDULE [sections 3 & 28] PROTECTION OF WAGES ON INSOLVENCY FUND BOARD 1. Status of Board The Board shall not be the servant or agent of the Government nor shall it enjoy any status, immunity or privilege of the Government. (Amended 23 of 2002 s. 32) 2. Seal (1) The Board shall have a common seal, the affixing of which shall be authenticated by the signature of any 2 members. (2) Any document purporting to be a document duly executed under the seal of the Board shall be received in evidence and shall, unless the contrary is proved, be deemed to be a document so executed. 3. Tenure of members (1) A member of the Board who is not a public officer shall, unless his appointment is terminated or otherwise ceases, hold office for such period as the Chief Executive may specify. (2) On the expiry of his period of appointment or re-appointment, any member to whom subparagraph (1) applies shall be eligible for re-appointment for such further term as the Chief Executive may specify. (3) Any member to whom subparagraph (1) applies may at any time resign from office by giving notice in writing to the Chief Executive, and he shall cease to be a member from the date specified in the notice or, if no date is specified, from the date of the receipt by the Chief Executive of the notice. (4) If any member of the Board, other than the Chairman, is absent from Hong Kong or is for any other reason unable to exercise the powers or perform the duties of his office as member, the Chief Executive may appoint another person to be a temporary member in his place during his absence or incapacity. (Amended 54 of 2000 s. 3) 4. Chairman (1) The Chief Executive shall appoint a person to be Chairman of the Board and shall give notice of such appointment by notice in the Gazette. (2) If the Chairman is absent from Hong Kong or is for any other reason unable to act as Chairman, the Chief Executive may appoint another person to be Chairman in his place during his absence or incapacity and shall give notice of such appointment by notice in the Gazette. (3) At any meeting of the Board the Chairman shall have a casting vote in addition to a deliberative vote. (Amended 54 of 2000 s. 3) 5. Meetings and proceedings of the Board (1) Meetings of the Board shall be held at such times and places as the Chairman or person acting as Chairman may appoint. (2) The quorum for meetings of the Board shall be 5. (3) Subject to this Schedule the Board may determine its own procedure. 6. Transaction of business by circulation of papers The Board may transact any of its business by the circulation of papers, and a resolution in writing which is approved by a majority of the members shall be valid and effectual as if it had been passed at a meeting of the Board by the votes of its members so approving the resolution. 7. Board may delegate to Commissioner The Board may by resolution, with or without restrictions or conditions as it thinks fit, delegate in writing to the Commissioner any of its powers and duties other than its power under section 4(1)(b) or 17(3). 8. Committees The Board may create and appoint such committees for any general or special purposes as it thinks fit and, in relation to such committees,- (a) the Chairman shall be appointed by the Board; and (b) the Chairman and at least 2 out of every 3 persons appointed to a committee shall be members of the Board. 9. Board may delegate to Committee The Board may by resolution, with or without restrictions or conditions as it thinks fit, delegate in writing to any committee appointed under paragraph 8 any of its powers and duties other than its power under section 4(1)(b) or 17(3). _________________ Note : Section 4 of 15 of 1993 which amended the Protection of Wages on Insolvency Ordinance is a transitional provision that affects this Ordinance. (Enacted 1985)
手机扫一扫
手机浏览移动版