Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

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

The Committee notes the Government’s report.

1. Article 1 of the Convention. Unilateral termination of contracts based on legitimate trade union membership or activities. In its previous comments, the Committee had noted 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 notes that, in its present report, the Government further indicates that section 48(1) establishes that, in the case of unilateral termination of the employment, the employer must pay a doubled compensation. The Government also indicates that, although the legal system does not provide for any reinstatement, in case of unilateral termination of contract based on legitimate trade union membership or activities, workers may have recourse to the labour inspector in order to obtain rapid 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, the most appropriate measure being reinstatement (see General Survey of 1994 on freedom of association and collective bargaining, 1994, paragraph 220).

Concerning other types of anti-union discrimination such as demotion and transfers, the Committee notes that, according to the Government’s report, these kinds of measures are not allowed, since they might go against the pre-established conditions of work. Should any of these situations take place, the worker will have the right to ask for reinstatement in the old post of work and the employer may be fined.

Furthermore, the Committee notes the Government’s indication that a Bill amending labour legislation, and covering the right of association and collective bargaining, is at an advanced stage, that it has already been discussed by the social partners and will be sent to the Legislative Assembly in the near future for discussion and approval. According to the Government, this new legislation will take into account the provisions of the Convention that forbid notably the anti-union dismissals.

The Committee hopes that the new Bill amending labour legislation and covering the right of association and of collective bargaining will be adopted in the near future. 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 indicate any progress made in this regard.

2. Article 2 of the Convention. The Committee notes the Government’s indication that the new Bill amending legislation will include measures to ensure that workers’ organizations are adequately protected against acts of interference by employers or their organizations. The Committee expresses the hope that this Bill will be adopted in the near future and that workers’ organizations will be adequately protected against any act of interference and that dissuasive sanctions will be established.

3. Scope of the Convention. Non-resident workers and homeworkers. 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 non-resident workers and homeworkers are already covered by section 2(1) of Act No. 2/99/M, which provides for the general right of association without authorization, afforded to all persons in Macau independently of the fact of being residents or not. According to the Government, non-resident workers have, in practice, the right to affiliate to class organizations. Furthermore, the Government indicates that the new Bill amending labour legislation eliminates all distinction between resident and non-resident workers concerning in particular the rights of association and collective bargaining. The Committee hopes that this new legislation will be adopted in the near future and that it will afford to all workers the guarantees set out in the Convention, including collective bargaining.

4. In its previous report, 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, The Committee notes the Government’s indication that the new Bill amending the labour legislation includes a chapter consecrated entirely to the right of association and collective bargaining. 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, as well as to provide information on the sectors of activity in which collective agreements have been concluded.

5. Article 6 of the Convention. 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 there is no specific legislation that covers public servants not engaged in the administration of the State. Nonetheless, the Committee notes with interest that the Government further indicates that, taking into account the importance of the issue, a new Bill regulating the fundamental right of freedom of association was sent to the Legislative Assembly. However, it could not be discussed because the necessary tripartite discussions could not be carried out within the Permanent Council for Social Partnership, but it will be examined at the next session of the Legislative Assembly. 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 guarantees 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 hopes that the new legislation will soon be adopted and that it will cover the right of collective bargaining of public servants not engaged in the administration of the State.