Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Article 1 of the Convention Scope of application. In its previous comments, the Committee had noted that new Labour Relations Act, Act 7/2008 (Labour Relations Act) is not applicable to public servants and that special legislations should regulate the rights of non-resident workers, seafarers and part time workers. The Committee requested the Government to communicate any special legislation which affords to non-resident workers, part-time workers, seafarers and public servants the rights enshrined in the Convention. The Committee notes that the Government indicates in its report that: (i) non-resident workers are covered by Law No. 21/2009, Law on the Employment of Non Residents and that according to its article 20, the labour relationship established with the non-resident employee, especially in terms of rights, duties and protections shall be supplemented by applying the general system of labour relationship, i.e. the Labour Relations Law; (ii) it is considering establishing a legal system of labour relationship that is not entirely the same as that under the Labour Relations Law for part-time employees but in the meantime, the provisions of the Labour Relations Law shall apply to this category of employees; and (iii) public servants are covered by the General Provisions on the Personnel of the Public Administration in Macao. The Committee notes however that no information was provided regarding seafarers. The Committee therefore once again requests the Government to communicate any special legislation which affords to seafarers the rights enshrined in the Convention. The Committee also requests the Government to provide information on any development concerning the adoption of a special legislation for part-time employees and trusts that it will be in full conformity with the Convention.

The Committee takes note of the International Trade Union Confederation (ITUC) comments submitted on 4 August 2011 stating that the new law on the Employment of Non-Residents from October 2009 remains discriminatory and too vague, that it imposes a levy on employers and that migrant workers are denied basic forms of protection and have no legal recourse in case of unfair dismissal. The Committee requests the Government to confirm that its statement concerning the application of the Labour Relations Law to non-resident workers means that migrant workers fully enjoy the rights enshrined by the Convention.

Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee had noted that articles 6 and 10 of the Labour Relations Act prohibit any acts of discrimination against workers due to their union membership or the exercise of their rights, and that article 85(1)(2) provides for sanctions in case of violation of these provisions (from 20,000 to 50,000 Macau patacas (MOP) equivalent to US$2,500 to 6,200). The Committee considers that these fines might, in some cases, not be sufficiently dissuasive, especially in large enterprises. The Committee recalls that legislation should make express provision for rapid mechanism and appeal procedures, coupled with effective and dissuasive sanctions against acts of anti-union discrimination in order to ensure the application in practice of Article 1 of the Convention. The Committee therefore requests the Government to indicate the measures taken or envisaged to strengthen the existing sanctions in order to be more efficient in cases of anti-union discrimination.

Article 2. Adequate protection against interference. In its previous comments, the Committee had noted that the Labour Relations Act does not contain any provision explicitly prohibiting acts of interference, or 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. The Committee notes that the Government indicates in its report that article 10 of the Labour Relations Act equally prohibits acts of interference by the employer and that these acts are also punishable by article 85. However, the Committee observes that section 10 does not explicitly prohibits all acts of interference, such as acts which are designed to promote the establishment of workers’ organizations under the domination of employers or employers’ organizations, or to support workers’ organizations by financial or other means, with the object of placing such organizations under the control of employers or employer’s organizations. The Committee recalls that legislation should make express provision for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference in order to ensure the application in practice of Article 2; moreover, to ensure that these measures receive the necessary publicity and are effective in practice, the relevant legislation should explicitly lay down these substantive provisions, as well as appeals and sanctions in order to guarantee their application (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 232). The Committee requests the Government to indicate the measures taken or envisaged in this regard.

Articles 1, 2 and 6. Protection against acts of anti-union discrimination and interference against public servants. The Committee notes that the Government indicates that according to articles 89(1)(n) and 132 of the General Provisions on the Personnel of the Public Administration in Macao, the public civil servants have the right to take part in trade union activities. However, the Committee observes that this law does not contain any provision against anti-union discrimination and interference. In this regard, the Committee notes that the Macau Civil Servants Association alleges, in its comments submitted on 21 April 2011, that for the past ten years, many of its members suffered discrimination of all kinds for belonging to a union and that they were kept aside from promotion and many suffered unjustifiable pressure and were subject to unfair treatment in their daily work, some were dismissed or their contract not renewed without any reason being given. In this respect, the Committee recalls that all workers should enjoy the rights enshrined in the Convention, with the only possible exception of public servants engaged in the administration of the State, the armed forces and the police. The Committee requests the Government to indicate which provisions afford to public servants adequate protection against acts of anti-union discrimination and interference. In the event that there is no such protection, the Committee requests the Government to take the necessary measures to amend the legislation accordingly.

Article 4. Absence of provisions for collective bargaining in the private sector. In its previous comments, the Committee had requested the Government to indicate the provisions that regulate the right of collective bargaining and had noted that new Act No. 7/2008 abrogating Decree-Law No. 24/89/M did not contain any provisions on collective bargaining. It had further taken note of a draft Law on the Fundamental Rights of the Unions which was subject to deep consultations. The Committee notes that the Government indicates in its report that: (i) the draft Law on the Fundamental Rights of the Unions was once more defeated in 2009 and that therefore, there is at the moment no regulatory provisions governing the right to collective bargaining; (ii) albeit the momentary lack of regulations on the right to collective bargaining, both workers and employers are still free to conduct collective bargaining and such acts of collective bargaining will not meet with any obstructions or interference; and (iii) the mechanism of tripartite coordination actually in place proves to work well. In this regard, while recalling that collective bargaining referred to in the Convention does not refer to tripartite mechanism, the Committee notes that in its comments, the ITUC indicates that the legislation does not adequately guarantee collective bargaining rights between employers and workers organizations. The Committee requests the Government to take the necessary measures in the very near future to ensure the full application of Article 4 of the Convention and to indicate any development concerning the adoption of the Law on the Fundamental Rights of the Unions or any provision regulating the right to collective bargaining in the private sector.

Article 6. Absence of provisions on collective bargaining in the public sector. The Committee notes that the Law-Decree No. 87/89/M, approving the General Rules for the Public Administration Personnel of Macau does not contain any provision concerning the right to collective bargaining of public servants. The Committee recalls that, according to Article 4, civil servants not engaged in the administration of the State should enjoy the right to bargain collectively. The Committee expresses the hope that the Government will take the necessary measures, in consultation with the social partners, to improve its legislation on public servants in respect of the rights enshrined in the Convention, including the right to collective bargaining for public servants not engaged in the administration of the State.