Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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

The Committee notes the observations of workers’ organizations communicated with the Government’s report but observes that the Government does not indicate the names of these organizations. The Committee further notes the Government’s reply to the 2013 and 2014 observations of the International Trade Union Confederation (ITUC) but observes that the Government fails to address most of the issues raised in the latter observations, including allegations of unfair dismissals of union members and teachers, anti-union measures in the gaming sector and absence of collective bargaining. The Committee requests the Government to provide its comments on these specific allegations.

Legislative developments. The Committee refers to its observations made under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in which it recalls that while the Labour Relations Law, 2008, contains some provisions that prohibit anti-union discrimination and provide sanctions for such acts, it does not include a chapter on the right to organize and collective bargaining, and that the Legislative Assembly has not yet been able to adopt the draft Law on Fundamental Rights of Trade Unions. The Committee strongly encourages the Government to intensify its efforts in order to achieve the adoption, in the near future, of a legislation that would explicitly grant the various rights enshrined in the Convention and address the Committee’s pending comments. The Committee requests the Government to provide information on any developments in this regard.

Scope of application of the Convention. The Committee recalls that in its previous comments, after having observed that both seafarers and part-time workers were excluded from the Labour Relations Law, it had requested the Government to ensure that the legal frameworks to be adopted concerning these two categories of workers would allow them to exercise their right to organize and to bargain collectively. The Committee notes the Government’s indication that the draft Seafarers’ Labour Relations Law is still under discussion to ensure its compatibility with the relevant international Conventions and that in March 2014 and November 2015, representatives of employers and workers provided written comments on the draft Part-Time Labour Relations Law, but their opinions on the subject remain divergent and the Government is, therefore, conducting a comprehensive study and analysis to readjust the text and proceed to adoption as soon as possible. In light of the above, the Committee once again requests the Government to provide information on any developments regarding the adoption of legislative frameworks regulating the rights of seafarers and part-time workers and expects that any such instruments will, in full conformity with the Convention, allow these categories of workers to exercise their right to organize and to bargain collectively.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. Having previously noted that fines imposed by section 85(1)(2) of the Labour Relations Law for acts of discrimination against workers due to their union membership or the exercise of their rights might not be sufficiently dissuasive, particularly for large enterprises (from 20,000 to 50,000 Macau patacas (MOP) equivalent to US$2,500–6,200), the Committee requested the Government to indicate the measures taken or envisaged to strengthen the existing sanctions. The Committee notes in this respect that the workers’ organizations affirm in their observations that, especially in the context of the current social conditions, penalties for acts of anti-union discrimination and interference should be raised in order to enhance the intensity of deterrence and increase the costs of infringements. On the other hand, the Committee notes the Government’s indication that: (i) section 85 establishes three categories of fines for minor infractions depending on their severity; (ii) deterrence of employees from exercising their trade union rights is punishable by the highest fine; (iii) if an act constitutes a criminal offence, the Penal Code will also apply; and (iv) the Labour Affairs Bureau investigates and follows up any labour dispute cases and if labour rights are found to have been impaired it opens a case and initiates investigations, so as to effectively safeguard the legitimate labour rights of employees. While taking due note of the Government’s explanation, the Committee observes that the amount of fines which can be imposed for acts of anti-union discrimination has not been modified and, therefore, still appears to be insufficiently dissuasive, particularly for large enterprises. In light of the above, the Committee requests the Government to provide clarification on the use, if any, of other sanctions provided for in the Penal Code, to which the Government makes reference. The Committee requests the Government once again to take the necessary measures to strengthen the existing pecuniary sanctions applicable to acts of anti-union discrimination in order to ensure their sufficiently dissuasive character.

The Committee further notes the Government’s indication that section 70 of the Labour Relations Law, which allows rescission of contract without just cause accompanied by compensation, was amended in 2015 by increasing the maximum amount on which compensation is calculated. The Committee also notes in this regard that according to the 2014 ITUC observations, this provision is in practice used to punish union members when they take part in union activities or industrial actions. Recalling that anti-union discrimination is explicitly prohibited by section 6 of the Labour Relations Law and Article 1 of the Convention, the Committee requests the Government to take the necessary measures, including legislative, if necessary, to ensure that section 70 of this Law is not used for anti-union purposes.

Article 2. Adequate protection against acts of interference. The Committee had previously noted that sections 10 and 85 of the Labour Relations Law did not explicitly prohibit all acts of interference as described in Article 2 of the Convention, or guarantee adequate protection by means of dissuasive sanctions and rapid and effective procedures. The Committee had therefore requested the Government to take the necessary measures to amend the legislation so as to include express provisions to this effect. The Committee notes the Government’s indication that: (i) section 4 of the Regulation on the Right of Association provides that any person who compels or intimidates another person to join or withdraw from an association can be subject to imprisonment of up to three years in line with section 347 of the Penal Code; (ii) workers may apply to court for protective or preventive measures if there is serious and irreparable damage to their rights (sections 25 and 26 of the Labour Procedure Code); (iii) labour proceedings triggered by unilateral termination of contract and requests for preventive measures are of an urgent nature allowing for prompt and effective handling of workers’ labour rights (section 5 of the Labour Procedure Code and section 327 of the Code of Civil Procedure); and (iv) a Labour Tribunal was established in 2013 to deal with civil and minor violations and issues arising from labour law relations. While taking due note of this information, the Committee emphasizes the need for legislation to explicitly protect workers’ and employers’ organizations against any acts of interference by each other or each other’s members, including, for instance, acts which are designed to promote the establishment of workers’ organizations under the domination of employers or employers’ organizations, and to make express provisions for rapid appeals procedures against such acts, coupled with effective and dissuasive sanctions. In light of these considerations, the Committee requests the Government to take the necessary measures to ensure that the relevant legislation includes provisions explicitly prohibiting acts of interference and providing for sufficiently dissuasive sanctions and rapid and effective procedures against such acts. The Committee also requests the Government to provide statistical information on the functioning, in practice, of the Labour Affairs Bureau and the Labour Tribunal, including the number of cases of anti-union discrimination and interference brought before them, the duration of the proceedings and their outcome.

Articles 1, 2 and 6. Protection of public servants not engaged in the administration of the State against acts of anti-union discrimination and interference. Having observed that the General Provisions on the Personnel of the Public Administration in Macao did not contain any provisions against anti union discrimination and interference, the Committee had previously requested the Government to indicate which provisions afford to public servants adequate protection against such acts and, if necessary, to take the necessary measures to amend the legislation accordingly. The Committee notes that the Government enumerates legislative instruments regulating the rights, obligations, rewards, penalties, promotion, appraisal and benefits of civil servants and indicates that participation of civil servants in trade union activities does not have any impact on their promotion, appraisal or benefits, let alone discrimination or interference. The Committee observes, however, that the Government does not point to any specific provisions that would explicitly provide protection to public servants against acts of anti-union discrimination and interference. In these circumstances, recalling that the scope of the Convention covers public servants not engaged in the administration of the State, the Committee requests the Government to take the necessary measures to amend the legislation so that it explicitly prohibits acts of anti-union discrimination and interference and grants public servants not engaged in the administration of the State adequate protection against such acts.

Articles 4 and 6. Absence in legislation of provisions on collective bargaining for the private sector and public servants not engaged in the administration of the State. In its previous comments, the Committee requested the Government to take the necessary measures to ensure the full application of Article 4 of the Convention both in the public and private sectors. Recalling that the Labour Relations Law does not contain a chapter on collective bargaining and that the draft Law on Fundamental Rights of Trade Unions is still pending adoption, the Committee notes the Government’s indication that despite the absence of legislation on collective bargaining, the Government will, in the formulation of relevant legislation and labour policies, consult and seek the views of the social partners, either through the tripartite coordination mechanism in the private sector or the permanent consultation mechanism established by the Civil Service Pay Review Council for civil servants. According to the Government, employers and workers also safeguard their respective rights and interests through the tripartite Standing Committee for the Coordination of Social Affairs. While recalling that collective bargaining referred to in the Convention is of a bipartite nature, the Committee notes the ITUC affirmation that this mechanism lacks transparency and fails to ensure balanced representation and consultation of independent trade unions. In light of the above, the Committee once again requests the Government to take the necessary measures in the very near future to ensure the full application of Article 4 of the Convention both for the private sector and public servants not engaged in the administration of the State, whether through the adoption of the draft Law on Fundamental Rights of Trade Unions or any other legislation, and to provide information on any developments in this regard.

Collective bargaining in practice. The Committee requests the Government to provide statistics as to the number of collective agreements concluded, specifying the sectors concerned, their level and scope, as well as the number of enterprises and workers covered.