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Levy Guide No. 2 Guidelines relating to objection made to the Objections Board

Disclaimer

This publication is prepared by the Construction Industry Council (CIC) to provide guidance on the administration matters in relation to objection made to the Objections Board but is NOT intended to constitute any legal or other professional advice on the provisions of the Construction Industry Council Ordinance or the Industrial Training (Construction Industry) Ordinance. Furthermore, if there are any discrepancies between this publication and the two ordinances, the latter will prevail.

Enquiries

Enquiries on this publication may be made to and assistance may be sought from the Finance Department of CIC at –

7a/F, 95 Yue Kwong Road
Aberdeen, Hong Kong 
Tel - 2100 9200
Fax - 2100 9339
E-mail - levy@cic.hk

Objections by Levypayers

  1. A levypayer who disputes a levy assessment or surcharge may contact the responsible officer listed in the notice of assessment or notice of surcharge to understand the basis and details of the subject assessment and surcharge, if applicable.
  2. Attempts will be made to see if further explanation of the assessment or provisions of the law can remove misunderstanding and bring about agreement to the original assessment. In other cases, after consideration of the fresh and further information, a revision of the assessment may be proposed by the Construction Industry Council (“the Council”) in settlement of the queries / disagreement.
  3. In case where no agreement is possible, the contractor may consider referring his objection to the Objections Board for determination.
  4. However, under section 55(3) of the Construction Industry Council Ordinance (Cap. 587) (“the Ordinance”), a contractor must give notice of objection to the Council in writing within 21 days after he receives the notice of assessment or the notice of surcharge (as the case may be). Under section 55(4) of the Ordinance, a notice of objection shall state the grounds of objection and shall be accompanied by all written statements and other documentary evidence relied on by the objector.
  5. Under section 48 of the Ordinance, the contractor should pay the levy or surcharge, penalty or further penalty in accordance with section 46 even if he intends to make an objection under section 55.

Acknowledgement of Objections

  1. Upon receipt of an objection, the Finance Department will firstly examine whether it fulfils the requirement of a valid objection e.g. whether it is time-barred. If not, the Manager-Finance or an officer authorised by him will inform the levypayer of any defect promptly and advise of any action in paragraph 14 which could make it a valid objection.
  2. The staff of the Finance Department would –
    • check the accuracy of details contained in the notice of objection;
    • consider the grounds put forward by the contractor in support of his claim; and
    • clarify / obtain more information from the contractor on the case.
  3. Upon satisfaction of section 55(4) of the Ordinance, the Manager-Finance or an officer authorised by him would then acknowledge receipt of the Notice of Objection from the concerned contractor in the next working day.
  4. The observation of the Finance Department (e.g. whether similar objections have been received and how they were dealt with) together with the Notice of Objection would be submitted to the Objections Board for consideration within ten days of the receipt acknowledgement of the Notice of Objection. The above will be copied to the contractor for information.
  5. Upon receiving the observation from the Finance Department, the objector may provide the Objections Board with further information in writing within the next seven days.

Constitution of the Objections Board

  1. The Objections Board is an independent tribunal consisting of three persons drawn from the membership of the Council for the purpose of determining objections. Appointments are made by the Construction Industry Council under section 54 of the Ordinance. There is a convenor, and not more than two other members. Decisions are based on a majority vote.
  2. Under section 54(4) of the Ordinance, the Objections Board may determine its own procedures to be followed in relation to an objection made to the Objections Board.
  3. All documents relating to the work of the Objections Board are restricted.

Requirement of a Valid Objection under Sections 55(3) and 55(4) of the Ordinance

  1. For an objection to be valid, it must fulfill the following requirements:
    a. be made in writing and must be served on the Council within 21 days after the contractor receives the notice of assessment or the notice of surcharge (as the case may be) (Section 55(3)); and
    b. Under section 55(4), the notice shall state the grounds of objection to the assessment and/or surcharge imposed. It shall be accompanied by all written statements and other documentary evidence relied on by the objector (such as including but not limited to copies of relevant contract document, tender document, bill of quantities, or final payment certificate). The objection precludes any vague claim such as “the assessment is not agreed”. The grounds need not be stated in legal form; they can be expressed in ordinary language but they should be sufficiently explicit to direct the attention of the Objections Board to the particular aspects which the levypayer contends as erroneous.

(Note: To facilitate contractors wishing to make an objection, a form "Notice of Objection" for the purpose is prepared and can be downloaded – Notice of Objection)

Processing of Objections

  1. The Objections Board’s procedure is aimed at avoiding, as far as possible, any delay in dealing with objections. This can only be achieved if there is firstly a proper presentation of the objection by the levypayer, followed by a prompt reply to any further information requested by the Finance Department of the Council.
  2. In many cases further information or facts may be required before the Objections Board can determine the objection. These will be asked for as soon as possible after receipt of the notice of objection by the Finance Department. The prompt submission of these information will enable the objection to be dealt with expeditiously. Undue delay by a levypayer may result in the objection having to be determined thereafter.
  3. A proper presentation of the objection will involve not only a statement of the precise grounds of objection but also the furnishing of evidence and arguments in support of the contention that the assessment and/or surcharge is erroneous [paragraph 14(b) above].

Determination of an Objection by the Objections Board

  1. The Objections Board will consider every valid objection and within a reasonable time may confirm, cancel or reduce the levy or surcharge.
  2. In determining an objection, the Objections Board acts in a judicial capacity. It is regarded as a tribunal deciding an issue between the Council and the objecting levypayer.
  3. The onus of proving that the assessment and/or surcharge objected against is excessive or incorrect is on the objector. Failure to discharge this onus can invalidate the objection.
  4. In attempting to reach agreement or determining the objection, the Objections Board may by notice in writing require the levypayer to furnish such particulars as may be deemed necessary in connection with the objection. The objector may be required to produce all related contracts or other documents.
  5. The Objections Board will not consider any grounds other than the grounds contained in the objector’s statement of grounds for objection. The Objections Board may admit or reject any documentary evidence adduced.
  6. All objections are determined in camera, but official publication of the determination (if any) may be made in such a manner that the identity of the objector is not disclosed.

Conveyance and Execution of Objections

  1. Under section 56(3) of the Ordinance, the Council shall notify the objector in writing of the decision of the Objections Board within 28 days after the Council receives the Notice of Objection or, where that is not practicable, within a reasonable period.
  2. Under section 56(4) of the Ordinance, if a levy or surcharge is cancelled or reduced by the decision of Objections Board, the Council shall forthwith refund to the objector the amount of the levy or any amount, including any amount of the penalty or further penalty, that has been paid in excess (as the case may be).

Appeal to the District Court

  1. Pursuant to section 57 of the Ordinance, an objector who is aggrieved by a decision of the Objections Board may appeal to the District Court against that decision. An appeal shall be lodged within 30 days after the objector receives the notification of the decision.

Note: A flowchart for the objection process is shown below for reference.

Flowchart for Construction Industry Council Levy Objection

Note (1) : Prompt submission of information will enable the objection to be dealt with expeditiously. Undue delay by a levypayer may result in the objection having to be determined thereafter.
Note (2) : Under section 56(3) of the Ordinance, the Council shall notify the objector in writing of the decision of the Objections Board within 28 days after the Council receives the Notice of Objection or, where that is not practicable, within a reasonable period.

* An objector who is aggrieved by a decision of the Objections Board may appeal to the District Court within 30 days against the decision of the Objections Board. (Para 26)

 

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