Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

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 of Decree No. 74/89M of 3 April 1985 establishes that the exercise of trade union activities does not constitute a valid reason for unilateral termination of 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 noted the Government’s indication that section 48(1) establishes that, in the case of unilateral termination of employment, the employer must pay double compensation. The Government also indicated that, although the legal system does not provide for 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 considered 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 employment) is paid, when the real motive is trade union membership or activity, was inadequate under the terms of Article 1 of the Convention.

Concerning other types of anti-union discrimination such as demotion and transfers, the Committee noted 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. The Committee notes the Government’s indication that under the current labour relations juridical system the exercise of legitimate rights by the employee is already guaranteed. The employer is prohibited from hindering the exercise by the employee of his legitimate rights or unilaterally terminating his labour relation or applying punishment to him (including transfer or demotion) for the same reason. The Government further indicates that all these provisions are maintained in the newly revised Labour Law and that any employer violating these provisions will receive the corresponding punishments, which include voluntary correction and criminal punishment for minor violations accompanied by a corresponding fine. The Committee considers that legislation should include, as the draft Labour Law does, provisions which address directly and specifically the protection against anti-union discrimination, through adequate sanctions.

2. Article 2 of the Convention. In a previous report, the Committee noted that the legislation did not contain provisions explicitly prohibiting acts of interference, nor guaranteeing adequate protection to workers’ organizations against acts of interference by employers or their organizations by means of dissuasive sanctions and rapid and effective procedures and requested the Government to take measures to ensure that such protection was afforded by the legislation. The Committee notes the Government’s indication that the situation is the same as the one concerning anti-union discrimination. The Committee hopes that the draft Labour Law will expressly include this protection.

3. Scope of the Convention. Non-resident workers and domestic workers. 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 domestic workers. The Committee noted 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. The Committee takes note of the Government’s indication that the draft Labour Law will also include non-resident workers and domestic workers in its scope of protection. Although the situation of non-resident workers will be regulated by a special law, the relevant special law will make most of the new Labour Law applicable to non-resident workers including the provisions concerning the prohibition on firing workers for joining the groups that represent their interests or for taking part in the activities of these groups. The Committee recalls that the simple right of association does not fulfil by itself all the requirements of the Convention.

4. In its previous comment, 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 reiterates its request.

5. Article 6 of the Convention. The Committee recalls that in a previous comment, it 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 wishes to point out that in its previous observation it had taken note of the Government’s indication that a bill amending labour legislation and covering the right of association and of collective bargaining would soon be adopted and that it would address all the issues commented upon. However, the Committee notes that in its present report, the Government indicates that a draft new Labour Law has been approved by the plenary of the Legislative Assembly after having taken into account the views of the Standing Committee for the Coordination of Social Affairs, a tripartite consultative organ. The Government further indicates that the draft new Labour Law passed the first article-by-article examinations by the Third Standing Committee of the Legislative Assembly and that a widespread consultation is currently taking place among citizens and groups, which was estimated to be completed by the end of July 2007. The article-by-article examination will continue after the consultation. The Committee notes, nevertheless, that the Government indicates that during the revision of the draft Labour Law, the chapter on the right to organize and collective bargaining was deleted due to the fact that a Law on Trade Unions had not been elaborated yet. The Government indicates that the chapter will be reflected in the form of a supplement to the Labour Law when the relevant law on labour unions will be in place.

Moreover, the Committee notes the Government’s indication that the Law on Trade Unions (draft Law on the Fundamental Rights of the Unions) proposed by some members of the Legislative Assembly in June 2005 was subject to deep and broad consultations and discussions among the social partners and gave rise to numerous reactions from different groups, in particular with respect to the influence that the transformation of the existing labour groups into union-like organizations would have on the development of Macau’s economy. Although neither the draft Labour Law nor the draft Law on the Fundamental Rights of the Unions were approved by the Legislative Assembly, the Government underlines its will to fully implement the Convention.

In these circumstances, noting that the legal initiatives reported by the Government in the past for a better application of the Convention have not been adopted, the Committee requests the Government to take the necessary measures to adopt in the near future the appropriate legislation so as to clearly ensure the full application of the Convention on the different points raised. The Committee requests the Government to keep it informed of any developments on this issue. The Committee reminds the Government that the technical assistance of the Office is at its disposal.