Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - China - Macau Special Administrative Region (Ratification: 1999)

The Committee notes the Government’s report. The Committee notes in particular the Government’s indication that a Bill that will effectively regulate trade union activities is currently in the process of finalization in the Legislative Assembly.

1. Article 1 of the Convention. In its previous comments, the Committee requested the Government to indicate: (1) whether under the terms of section 47 of Decree-Law No. 24/89 on labour relations it is possible for the employer to terminate an employment contract unilaterally, even where such termination is for anti-union purposes; (2) whether in such cases of unilateral termination (which may be assimilated to dismissal), workers have access to rapid and effective recourse which can provide for compensation and possibly reinstatement; (3) whether there are sufficiently dissuasive sanctions; and (4) whether the legislation also protects workers against other prejudicial measures, such as transfers, demotion, etc., and the penalties and procedures applicable in such cases.

The Committee notes the Government’s comments on the protection afforded by Decree-Law No. 24/89 against anti-union dismissals. However, the Committee notes that even though section 45 establishes that the exercise of trade union activities does not constitute a valid reason for unilateral termination of the employment, according to section 47 the employer may have recourse to the unilateral termination of the employment of a worker irrespective of the reason, through the payment of compensation.

The Committee considers that legislation which allows the employer in practice to terminate the employment of a worker on condition that the compensation provided for by law in all cases of unjustified dismissal (or unilateral termination of the employment) is paid, when the real motive is trade union membership or activity, is inadequate under the terms of Article 1 of the Convention (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 220). The Committee requests the Government to take the necessary measures to ensure that legislation forbids any unilateral termination of the employment contract on the basis of legitimate trade union membership or activities.

The Committee further notes that the Government does not indicate whether workers have access to rapid and effective recourse procedures in which they can invoke the anti-union nature of the action taken and obtain redress and through which sanctions can be imposed. Moreover, the Committee observes that the Government does not indicate whether workers are protected against other prejudicial measures such as demotion, transfers, etc.

The Committee requests the Government to take the necessary measures to ensure that the legislation expressly protects all workers against acts of anti-union discrimination, during the employment relationship (including the unilateral termination of contract, transfers, demotion, etc.) for trade union membership or union activities, and that such protection is accompanied by rapid proceedings and sufficiently dissuasive sanctions. It also requests the Government to take the necessary measures to ensure that the future Act amending the labour legislation will take these comments into account and to indicate any progress made in this regard.

2. Article 2. The Committee had requested the Government to take measures to ensure that workers’ organizations are adequately protected against acts of interference by employers or their organizations. The Committee notes with interest that according to the Government the Bill regulating trade union activities will adequately address this question and requests the Government to keep it informed of any development on this point. The Committee hopes that the future legislation will forbid interference acts and that dissuasive sanctions will be established.

3. Scope of the Convention. In its previous comments, the Committee requested the Government to take measures to ensure that the legislation affords the guarantees set out in the Convention, including collective bargaining, to all workers including non-resident workers and homeworkers. The Committee notes the Government’s indication that these workers enjoy the right of association without restriction and that the limitation established in section 3(3) of Decree-Law No. 24/89/M only provides that special legislation is applicable to these categories of workers (in particular, they require prior administrative authorization to the recognition of the right of residence, and they provide for minimum national social standards). Furthermore, the Government refers namely to four non-resident workers’ associations in Macau. The Committee observes that Ruling No. 12/GM/88 and Ruling No. 49/GM/88 about non-resident workers reproduced by the Government, do not address the question of freedom of association and collective bargaining. The Committee notes with interest that the new Bill to amend the labour legislation will address the issue of non-resident workers and hopes that it will ensure that the legislation affords the guarantees set out in the Convention to these workers.

4. Moreover, the Committee had requested the Government to indicate whether, in cases where a trade union exists in the enterprise or the institution, a group of non-unionized workers can bargain collectively and whether there were other legislative provisions, in addition to section 6 of Decree-Law No. 24/89/M, which regulate collective bargaining, and also to provide information on the sectors of activity in which collective agreements have been concluded. The Committee notes the Government’s indication that there are few collective agreements in Macau and observes with interest that the new Bill to amend the labour legislation will address the question of collective bargaining, taking into account the previous comments made by this Committee. The Committee requests the Government to ensure that the future Act will expressly address this issue and hopes that it will forbid collective bargaining by a group of non-unionized workers where a trade union exists in the enterprise or the institution. The Committee requests the Government to keep it informed of any developments in this respect.

5. Article 6. In its previous comments, the Committee requested the Government to indicate the provisions which guarantee the right of public servants who are not engaged in the administration of the State to collective bargaining and protection against acts of anti-union discrimination and interference. The Committee notes the Government’s indication that public servants, whether or not engaged in the administration of the State, enjoy full rights of association derived from article 27 of the Basic Law and Law No. 2/99 regulating the right of association. However, the Government does not make any specific reference to collective bargaining. The Committee recalls that while Article 6 of the Convention allows public servants engaged in the administration of the State to be excluded from its scope, other categories should enjoy the guaranties of the Convention and therefore be able to negotiate collectively their conditions of employment, including wages (see paragraph 262 of the 1994 General Survey). The Committee requests the Government to indicate, by referring to the relevant legal provisions, whether public servants not engaged in the administration of the State enjoy the right to bargain collectively and if that is not the case to ensure that the future Act regulating trade union activities or other legislative texts will cover the right of collective bargaining of public servants.