The happening of industrial incidents will very often be followed by the laying of industrial summonses by the Labour Department. As conviction records are likely to have an adverse impact on the prospects of contractors’ tenders for projects, contractors would want to as far as possible minimize their conviction records. This article will give you some practical tips on handling industrial summonses.
It would be best if preparation can be done as soon as industrial incidents happen. If the contractor has staff members who are experienced in dealing with industrial incidents, do arrange them to attend the site immediately to take note of what had happened and to take photos of the scene. Start collecting relevant documents and arranging meetings with personnel involved to record their versions of the events as soon as possible. In case the industrial incidents lead to prosecution, such documents and meeting records will be helpful for the preparation of the defence.
After the commencement of investigation by the Labour Department, the Labour Department would usually require the contractor’s staff to provide information and/ or attend interviews with them. While contractors may not wish to give information which may be prejudicial to themselves, it should be noted that under the Factories and Industrial Undertakings Ordinance and the Occupational Safety and Health Ordinance, the Labour Department has wide investigations powers, including the requirement for provision of information by contractors. Failure to comply with Labour Department’s requests may lead to prosecution. Having said that, skills may be exercised in responding to Labour Department’s requests. Extent of details to be given to the Labour Department will need to be carefully considered before responding to their requests, as such details may be relied on by the prosecution in their case against the contractors. Contractors may, if possible, consider seeking lawyers’ opinion before responding to them.
In the case where there is a prosecution, contractors may in appropriate cases rely on the notion of “reasonable practicability” as a defence. This is a statutory defence provided under s.18 of the Factories and Industrial Undertakings Ordinance. The burden is on the contractors to prove that it is not reasonably practicable to do more than what was in fact done. The court’s approach to construing “reasonable practicability” has been clarifi ed in the Court of Final Appeal case of HKSAR v Gammons Construction Ltd  4 HKC 28. It is held that in considering “reasonable practicability”, a court may have regard to the need to balance the likelihood of risk against the cost, time and trouble necessary to avert the risk. In compiling documents in preparation of the defence, contractors may try to collect all relevant documents and evidence from its staff to show what precautions had been taken and why they had not been able to do more than what had been done.
It is important to make sure every step after the happening of industrial incidents is properly taken. Do consult lawyers immediately after the happening of industrial incidents to minimize the chance of getting convictions.