Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - China - Macau Special Administrative Region (Ratification: 1999)

The Committee notes the Government’s report and the information provided. The Committee recalls that in its previous comments it raised two questions on the following points.

Article 2 of the Convention. The Committee requested the Government to indicate whether domestic workers and homeworkers were guaranteed the right to organize by provisions other than Decree-Law No. 24/89M on labour relations in Macau, which explicitly excludes these categories of workers. The Committee notes the Government’s indication that domestic workers are not covered either by this Decree-Law or any other legislation, because up to now this kind of work was performed by non-resident workers whose status is regulated by special legislation that does not address the subject of freedom of association. However, the situation has changed now and domestic work is performed by local workers. In order to cope with this new situation a new Bill amending the labour legislation has been drafted and is under consultation with the social partners. The Committee recalls that Article 2 of the Convention provides that: "Workers and employers, without distinction whatsoever, shall have the right to establish and ... to join organizations of their own choosing ... ." The right to organize should therefore be considered as the general principle, the only exception to which is that stipulated in Article 9 of the Convention, which permits States to determine the extent to which the guarantees provided for in the Convention apply to the armed forces and the police (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 45). The Committee hopes that the new legislation covering domestic workers will soon be adopted in order to ensure that all workers in the country whether or not they are residents have the right to establish or join trade union organizations, and requests the Government to indicate in its next report the progress made in this respect.

With regard to homeworkers, the Committee notes the Government’s indication that these workers are not totally excluded from the scope of Decree-Law No. 24/89M. According to the Government, section 3 only excludes homeworkers from the application of Chapters III, IV and V of the Decree-Law which cover working hours, organization of work, and the suspension of employment and salaries, because of their particular status. Moreover, section 6, establishing the principle of the prevalence of agreements over the law when they are more favourable to the worker, is applicable to homeworkers. In addition, all the other provisions concerning freedom of association contained in Law No. 2/99M regulating freedom of association in general, are applicable.

Article 3. The Committee requested the Government to indicate whether the right of workers’ and employers’ organizations to formulate their programmes and the right of workers’ organizations to exercise the right to strike was set out in the legislation and whether in practice workers’ organizations may have recourse to strikes without having penalties imposed. The Committee notes the Government’s indication that these rights are not specifically established in Decree-Law No. 24/89M, but derive directly from section 27 of the Basic Law that provides for freedom of expression, freedom of the press, freedom of association, freedom to hold meetings, parades and demonstrations, freedom to organize and join trade unions and to go on strike. The Government recognizes the lack of specific regulation on the right to strike and indicates that a draft instrument that will address this question is before the Legislative Assembly. The Government adds that to date there have been no cases related to the exercise of the right to strike. The Committee hopes that a new Bill will be adopted in the near future so as to clearly ensure the right to strike, in accordance with Articles 3 and 10 of the Convention, to all workers with the only possible exception being those in essential services in the strict sense of the term and public servants exercising authority in the name of the State. It requests the Government to keep it informed of developments in this respect.