Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year (see legislative developments and Articles 1 and 2 below), as well as on the basis of the information at its disposal in 2019.

In its previous comment, the Committee noted the observations of representative organizations of workers communicated with the Government’s report and collected through the Standing Committee for the Coordination of Social Affairs, whose members are appointed from the most representative workers’ and employers’ organizations (currently the Macao Chamber of Commerce and the Macao Federation of Trade Unions). These referred to the need to adopt specific laws on freedom of association and point to anti-union practices in some enterprises. The Committee further noted the observations of the Macau Civil Servants’ Association received on 6 August 2019, also referring to the need to legislate on matters of freedom of association and collective bargaining, and the Government’s general reply thereto. The Committee also noted the Government’s additional reply to the 2014 observations of the International Trade Union Confederation (ITUC) but observed that the Government had failed to address the concrete allegations of unfair dismissals of union members and teachers. The Committee reiterates its request to the Government to provide its comments on those specific allegations.

Legislative developments. The Committee previously referred to its comments made under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in which it recalled that while the Labour Relations Law adopted in 2008 contained some provisions that prohibit anti-union discrimination and provided sanctions for such acts, it did not include a chapter on the right to organize and collective bargaining, and that the draft Law on Fundamental Rights of Trade Unions, which would give effect to these rights, had been pending adoption since 2005. Referring to its comments made under Convention No. 87, the Committee strongly encouraged 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 notes the Government’s indication in its supplementary report that a research study, initiated in 2016 to understand the social conditions required for initiating a discussion on a Trade Union Law, was finalized 2019. The Government indicates that, in light of the study’s recommendations, it will begin the early stage of the legislation process of the Trade Union Law and is planning to undertake a public consultation to allow ample discussion and provide a foundation for formulating a Law that is responsive to the societal needs.

While taking due note of the Government’s indications, the Committee recalls that the draft Law on Fundamental rights of Trade Unions has been pending adoption for fifteen years. Referring to its more detailed comments made in this regard under Conventions No 87, the Committee urges the Government to intensify its efforts to achieve the adoption, in the near future, of a legislation that will 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.

The Committee also previously requested the Government to provide information on any developments regarding the adoption of legislative frameworks regulating the rights of seafarers and part-time workers and expressed the expectation that any such instruments would, in full conformity with the Convention, allow these categories of workers to exercise their right to organize and to bargain collectively. The Committee takes due note of the information provided by the Government and refers to its more detailed comments made under Convention No. 87.

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 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. It also requested the Government to provide clarification on the use, if any, of sanctions provided for in the Penal Code, to which the Government made reference. The Committee notes the Government’s indication that: (i) heavy penalties are already imposed for illegal acts violating workers’ rights and the Government will continue to carefully review and improve the laws and regulations in the field of labour; (ii) violations of the Labour Relations Law are divided into administrative violations and “minor violations”, which are more serious, have a criminal nature and to which the Penal Code applies; (iii) in case an employer deters an employee from exercising his or her rights or subjects the employee to any adverse treatment for exercising such rights (section 10(1) of the Labour Relations Law) and the act constitutes a criminal offence, the Labour Affairs Bureau will actively follow-up, institute a punishment procedure and impose a fine; and (iv) upon refusal by the employer to pay the fine, judicial proceedings will be initiated, in which the court can impose a fine under the provisions of the Penal Code. While taking due note of the information provided, the Committee observes that there do not seem to have been any concrete measures taken to increase the penalties foreseen for acts of anti-union discrimination, which therefore, still appear to be insufficiently dissuasive, particularly for large enterprises. The Committee notes in this regard that representative organizations of workers also emphasize the need to increase the amount of penalties and fines for anti-union discrimination in order to enhance the deterrence of such acts. They further consider that there is evidence of anti-union practices in some enterprises in which enterprise regulations require employees who join trade unions and assume trade union functions to inform the management. In light of the above, the Committee requests the Government once again to take the necessary measures, in consultation with the social partners, to strengthen the pecuniary sanctions applicable to acts of anti-union discrimination in order to ensure their sufficiently dissuasive character. The Committee requests the Government to provide information on any progress in this regard.

The Committee also previously noted the 2014 ITUC observations, that section 70 of the Labour Relations Law, which allows rescission of contract without just cause accompanied by compensation, was in practice used to punish union members when they take part in union activities or industrial actions, and requested the Government to take the necessary measures, including legislative, if necessary, to ensure that this provision is not used for anti-union purposes. In its previous comment the Committee noted that the Government stated that between 2014 and May 2019, the Labour Affairs Bureau had not received any complaints of anti-union dismissals but did not elaborate on any measures taken to address the ITUC concerns. The Committee notes the Government’s indication in its supplementary report that between June 2019 and May 2020 the Labour Affairs Bureau did not receive any complaint of antiunion dismissals. Recalling that anti-union acts may not, in practice, always result in the filing of complaints to the competent authorities, the Committee requests the Government once again to take the necessary measures, including of a legislative nature, to ensure that termination of employment contract under section 70 of the Labour Relations 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. In its previous comment, it therefore requested the Government to take the necessary measures to ensure that the relevant legislation includes express provisions to this effect. The Committee notes that the Government reiterates the procedure explained above relating to obstruction by the employer of the exercise of employees’ rights and states that it will continue its efforts to work towards the goals set by the Convention. Recalling once again that the applicable legislation (sections 10 and 85 of the Labour Relations Law and section 4 of the Regulation on the Right of Association) do not explicitly prohibit all acts of interference as described in Article 2 of the Convention, 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 once again to take the necessary measures to include in the relevant legislation provisions explicitly prohibiting acts of interference and providing for sufficiently dissuasive sanctions and rapid and effective procedures against such acts.

The Committee also previously requested 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. In its previous comment, the Committee noted the Government’s indication that between June 2016 and May 2019 one case was opened on the allegations that an employee had been suspended for participating in a procession but it was later found that it was due to poor performance, and that no decisions were found before the courts that would deal with cases of discrimination or interference. The Committee notes the Government’s indication in its supplementary report that between June 2019 and May 2020 the Labour Affairs Bureau did not receive any complaints concerning the suspension of employees because of participation in demonstrations. The Committee requests the Government to continue to provide statistical information on the functioning, in practice, of the Labour Affairs Bureau and the Labour Tribunal with regard to allegations 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. The Committee previously 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 and that the Government did not indicate any other specific provisions that would explicitly provide protection to public servants against acts of anti-union discrimination and interference. The Committee requested 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. The Committee notes that the Government reiterates that protection of civil servants against discrimination or interference for participating in trade union activities is guaranteed but observes once again that it does not point to any specific legislative provisions to this effect. 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 once again to take the necessary measures, including of a legislative nature, to explicitly prohibit acts of anti-union discrimination and interference and grant 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 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. The Committee notes the Government’s statement that it always conducts discussions and consultations with the social partners, either through the tripartite consultation platform of the Standing Committee for the Coordination of Social Affairs in the private sector, which has become an essential platform to communicate, negotiate and reach consensus and helps construct stable and harmonious employer–worker relations, or through the permanent consultation mechanism established by the Civil Service Pay Review Council to formulate standards and procedures for pay adjustment in the civil service. The Government indicates that several laws and regulations on the conditions of work of civil servants are currently being revised and that through the different consultation channels, civil servants can express their opinions on relevant matters. Recalling that the Convention tends to essentially promote bipartite negotiations of terms and conditions of employment and that the establishment of simple consultation procedures instead of real collective bargaining procedures is not sufficient, the Committee requests the Government once again 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 notes that the Government has not conducted any relevant statistical analysis on collective agreements reached. The Committee requests the Government once again 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.