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

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 comments made by the International Trade Union Confederation (ITUC) in a communication dated 4 August 2011 on the application of the Convention and in particular concerning obstacles to trade union registration and police repression during May Day celebrations in 2010. The Committee requests the Government to provide its observation thereon.

The Committee also notes the comments submitted on 18 June 2011 by the Macau Civil Servants Association and the Government’s reply thereon.

Article 2 of the Convention. In its previous comments, the Committee had noted that the ITUC alleged that domestic workers, migrant workers and civil servants did not enjoy trade union rights. The Committee requested the Government to ensure, through the corresponding legislation, the rights enshrined in the Convention and to inform it of any developments in respect of this matter.

As concerns domestic workers, the Committee notes that the Government indicates in its report that: (i) the scope of application of the Labour Relations Law, 2008, includes domestic workers; (ii) the law applies to all labour relations in all fields of activities, regardless of whether the employer is an irregular establishment or without legal personality; (iii) article 2(1) of Law No. 2/99 Regulation on the Right of Association provides that “anyone has the right to form associations freely and without obtaining authorization”; (iv) article 27 of the Basic Law of the Macao Special Administrative Region provides for the right and freedom to form and join trade unions; and (v) thus, it is clear that persons performing domestic work have the right to form associations.

As concerns migrant workers, the Committee notes that the Government indicates that article 20 of Law No. 21/2009 Law on the Employment of Non Residents affords the right to freedom of association to these employees and that according to this provision, 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.

Moreover, the Committee notes that employees working part-time do not fall within the scope of the Labour Relations Law (article 3(2)). In this regard, the Committee notes that the Government indicates that it is considering establishing a legal system of labour relationship that is not entirely the same as that under the Labour Relations Law. The Committee therefore requests the Government to provide information on the measures taken in this regard in its next report and trusts that it will be in full conformity with the Convention.

As concerns civil servants, the Committee notes that the Government indicates that according to the provisions of article 89(1)(n) and article 132 of the General Rules for the Personnel of the Public Administration of Macao, approved by Law Decree No. 87/89/M, the public servants have the right to take part in trade union activities. In addition, the Committee notes that the Government indicates that according to report No. 010/DTJ/INF/2006 containing the Guidelines on the right of association of the public civil servants of Macao and the impossibility for them to hold concurrent appointments, anyone, being chief, head of office, or personnel of other grades wishing to join a society or assume any post in the society, should not be judged to be pursuing private interests, thus should not be required to seek prior permission.

Article 3. Right of organizations to freely organize their activities and to formulate their programmes. Right to strike. In its previous comments, the Committee had noted the Government’s indication that two bills were in discussion in the Legislative Assembly (the Labour Relations Law and the Law on Fundamental Rights of Unions) and expressed the hope that the draft legislations would be in conformity with the Convention. The Committee notes that the Labour Relations Law was adopted in 2008 but did not include a chapter on the right to organize and collective bargaining due to the fact that the Law on Fundamental Rights of Unions had not yet been elaborated. The Committee also notes that the Government indicates in its report that: (i) the draft Law on Fundamental Rights of Unions was once more defeated in 2009; (ii) the repeated defeat of the efforts in favour of this law, to some extent, indicated the divergence that persists in the society and that any information on the possible adoption of this law will be communicated to the Office in its future reports; and (iii) according to article 27 of the Basic Law of Macao, Law No. 22/99/M Regulation on the Right of Association, and article 155 of the Civil Code, freedom of association, organizing and joining trade unions and the right to strike are fundamental rights afforded to the residents of the Macao Special Administrative Region.

The Committee therefore understands that no specific law has been adopted concerning the right to strike yet. In these circumstances, the Committee once again invites the Government to take measures, in consultation with the social partners, to ensure not only the legal recognition of the right to strike but also its effective exercise in practice. The Committee once again requests the Government to provide information on any development concerning the adoption of the draft Law on the Fundamental Rights of Unions and expresses the hope that it will be in full conformity with the Convention.