Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Labour Inspection Convention, 1947 (No. 81) - China - Macau Special Administrative Region (Ratification: 1999)

Articles 2, 3, 5(a), 13, 17 and 18 of the Convention. Cooperation between the labour inspection services and the justice system and enforcement measures. With reference to its previous comments, the Committee notes with interest that steps have been taken to strengthen cooperation between the labour inspection services and the justice system. These include the development of the “LEGISMAC inquiry system for Macau Special Administrative Region legislation in relation to ILO Conventions” (LEGISMAC) for the exclusive use of the Labour Affairs Bureau (DSAL) and the justice sector. The LEGISMAC inquiry system came into operation officially as from November 2010, facilitating the Primary Court to search and collect the information in relation to the implementation of ILO Conventions and then communicate the relevant decisions to DSAL. As of the end of 2011, the DSAL has begun to archive and record written decisions provided by the Court through the system (including the written decisions concerning labour dispute, illegal work and work-related accidents) to have more effective categorization of the aforementioned written decisions and produce more statistics on them.

The Committee also notes that, according to the Government’s report, between June 2010 and May 2012, 472 cases have been referred by the DSAL to the Court. The DSAL received 403 written decisions on labour disputes which indicate that, out of 404 “persons/times of employers” that were involved in the cases, 228 were judged established. The Committee would be grateful if the Government would describe the impact of the LEGISMAC inquiry system on effective labour law enforcement by the labour inspection in cooperation with the justice system. The Committee would also be grateful if the Government would provide copies of relevant court decisions.

Noting from the Government’s report that the offending employers are mainly from the construction industry, the Committee requests the Government to provide detailed information on labour inspection activities relative to occupational safety and health (OSH) in this industry, and on their impact from the point of view of labour law enforcement and on the reduction of industrial accidents and cases of occupational disease.

Articles 3(1) and (2) and 17. Specific cooperation aimed at combating illegal work taking into account the objectives of the Convention. The Committee notes with concern, from the Government’s report that non-inspector labour inspection personnel continues to assist the criminal police force in checking the papers of employed persons, and are still involved in joint operations with the criminal police to combat illegal work. The Committee also notes that there are no available statistics on the workers who obtained wages and other compensation after joint actions. Furthermore, the Committee notes that, according to the Government’s report, inspectors at Grade 2 with DSAL are tasked with the control of compliance with Law No. 21/2009 on Hiring Non-residents Workers among others.

The Government reiterates that there is a clear distinction between the criminal police force and the DSAL and that, regardless of the status and situation of the worker, the DSAL will always endeavor to protect the rights and interests of workers.

Noting once again that non-inspector grade personnel is an integral part of the labour inspection system as understood under Article 2 of the Convention, the Committee recalls that a role for the labour inspectorate consisting of assisting the police and immigration authorities to target workers suspected of being “illegal” is in total contradiction with the protective function entrusted to labour inspectors by the Convention and is not conducive to the relationship of trust needed to create the climate of confidence that is essential to enlisting the cooperation of employers and workers with labour inspectors. It must be possible for inspectors to be respected for their authority to report offences, and at the same time to be approachable as preventers and advisers. The Committee therefore urges the Government to take the necessary measures to dissociate the functions of enforcing immigration law from those of controlling the observance of workers’ rights by ensuring that labour inspectors are no longer involved in joint operations with the criminal police force.

With reference to paragraph 78 of the 2006 General Survey on labour inspection, the Committee reminds the Government that, to be compatible with the protective function of labour inspection, the verification of the legality of employment by labour inspectors should have as its corollary the reinstatement of the statutory rights of all workers, including undocumented ones. This objective can only be met if the workers covered are convinced that the primary task for the labour inspectorate is to enforce the legal provisions relating to conditions of work and the protection of workers. The Committee once again requests the Government to indicate the manner in which the labour inspectorate ensures the discharge of employers’ obligations (notably payment of wages and other benefits owed for work done during the period of the effective employment relationship) with regard to foreign workers in an irregular situation from the point of view of residence status, including in cases where such workers are liable to expulsion from the Macau Special Administrative Region or have already been expelled by the authority responsible for controlling illegal immigration. In this regard, the Committee would be grateful if the Government would provide more detailed information on legal proceedings instituted, and remedies and sanctions imposed on employers found to be in violation of the legal provisions relating to workers’ statutory rights including vis à vis undocumented foreign workers.

Articles 3(1), 6 and 7(1). Qualifications and conditions of service of labour inspectors relative to their functions. The Committee notes the Law 14/2009 on the Establishment Rules of the Civil Service and the provisions of Article 29 on career prospects and salaries assigned to labour inspectors. The Committee also notes from the Government’s report that the DSAL is staffed with 148 “labour inspection persons” (50 inspectors, 63 “non-inspector grade persons” and 35 interns). The Committee also notes that inspectors and “non-inspector grade persons” carrying out inspection duties enjoy identical status concerning seniority, status and work; but they are responsible for different functions. Namely, labour inspectors deal with cases of labour dispute, while labour inspection personnel who do not hold the post of inspector deal with non-labour dispute cases. The Committee notes that “non-inspector grade persons” carry out functions which fall within the scope of Article 3 of the Convention especially on OSH. The Committee would be grateful if the Government would provide details on the status and conditions of service of labour inspectors and “non-inspector grade persons”, and if it would describe the criteria and procedures followed for the recruitment of labour inspectors and of “non-inspector grade persons”. Please also indicate if the appointment to the grade of labour inspector depends on the years of service as “non-inspector grade person”.

Article 7(3). Adequate training of labour inspectors. The Committee notes from the Government’s report the large scope of subjects covered by the training courses provided to labour inspection personnel. It notes, however, that a large majority of the training courses have been attended only by one to three persons. The Committee requests the Government to indicate the measures taken to ensure that the entire inspection personnel (both labour inspectors and “non-inspector grade persons”) is adequately trained for the performance of their inspection duties, and to communicate the differences, if any, in the training modules provided to labour inspectors and to “non-inspector grade persons” carrying out inspection duties in the area of OSH.

Articles 20 and 21. Publication of a consolidated annual report. The Committee notes the detailed information provided by the Government on labour and employment (e.g. statistics on labour force, employed and unemployed population, labour force participation rate, employment earnings, etc.) and on occupational accidents and diseases. It also notes that the DSAL is conducting a study and review to refine the existing statistics to improve labour inspection effectively. The Committee also notes that the Government communicates annual reports on labour inspection activities for years 2007–10.

The Committee will take note of the context of these reports once a translation is available.