Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - China - Macau Special Administrative Region (Ratification: 1999)

Article 1 of the Convention. Sexual harassment. The Committee recalls the absence of specific legislation defining and prohibiting quid pro quo and hostile environment sexual harassment. It notes that the Government indicates in its report that employees can make complaints to the Labour Affairs Bureau if the employer fails to respect or treat the employee with propriety, including in a case of sexual harassment, and that studies are under way towards the revision of provisions concerning sexual crimes in the Penal Code. The Government further indicates that only two complaints of sexual harassment have been received by the Labour Affairs Bureau between June 2012 and May 2015, and that these complaints were subsequently handled by the Judicial Police Bureau. While welcoming the intention of the Government to study the provisions in the Penal Code, the Committee emphasizes again that addressing sexual harassment only through criminal proceedings is not sufficient due to the sensitivity of the issue, the higher burden of proof, and the fact that criminal law does not cover the full range of behaviour that constitutes sexual harassment in employment and occupation (2012 General Survey on the fundamental Conventions, paragraph 792). The Committee requests the Government to take more proactive measures to develop legislative provisions that explicitly define and prohibit sexual harassment in line with the Committee’s 2002 general observation, and which provide adequate protection against sexual harassment taking into account the sensitivity of the issue and the need to cover the full range of behaviour that constitutes sexual harassment. It also asks the Government to continue to provide information on measures taken to raise the awareness of workers and employers and their organizations regarding sexual harassment at work, and on any cases of sexual harassment detected through labour inspections or reported to the Labour Affairs Bureau, and on the follow-up measures taken in this regard.

Article 2. Promotion of gender equality. The Committee notes that the Advisory Commission of Women’s Affairs has been renamed the Commission of Women Affairs as part of restructuring efforts in 2012, which also resulted in an expanded mandate that includes the promotion of women’s rights and awareness raising regarding women’s issues. The Government also indicates that a “Macau Women Database” has been created in 2015 and that the next report on the situation of women conducted by the Commission is scheduled to be published in 2017, and every five years thereafter. The Committee notes that according to the information of the Statistics and Census Service (SCS), men’s labour force participation rate was 79.6 per cent whereas women’s labour force participation rate was 68 per cent in 2015. The Committee also notes the Government’s indication that the “Macau Women Development Goals” will be developed to promote policies concerning women’s employment, and that the Social Work Bureau initiated the Community-based Child-rearing Service Experimental Programme to provide flexible childcare services to working parents. The Committee requests the Government to provide information on the activities of the Commission of Women Affairs to promote equality of opportunity and treatment in employment and occupation, including the upcoming study on the situation of women and its findings, as well as on the Macau Women Development Goals. It also asks the Government to provide information on measures taken to promote women’s participation in a wider range of industries and occupations and in higher level positions, and to communicate statistical information on the distribution of men and women in the various sectors, positions and occupations, both in the public and private sectors. The Committee further asks the Government to provide information on the results achieved to assist workers with family responsibilities to reconcile work and family responsibilities and promote their participation in the labour market, including the measures taken by the Social Work Bureau.

Discrimination on the basis of race, colour and national extraction. With reference to section 2(5) of Employment of Non-resident Workers (Law No. 21/2009), which gives precedence to resident workers over non-resident workers in respect of hiring and maintaining employment, and section 2(4) of Administrative Regulation on the Conditions or Responsibilities to be Established in the Employment Permit for Non-resident Workers No. 13/2010, which provides that employment of a minimum number of resident workers is required as a condition for issuing employment permits for non-resident workers, the Committee notes the Government’s indication that the hiring of non-resident workers is subject to the principles of complementarity, priority and non-discrimination. The Government further indicates that discrimination is prohibited under section 6(2) of the Labour Relations Law No. 7/2008, and that section 20 of the Employment of Non-resident Workers’ Law stipulates that labour relations entered into with non-resident workers shall be subject to rights, obligations and guarantees of the Labour Relations Law. The Committee considers that in order to be in conformity with the Convention, it should be ensured that the practical application of legal provisions providing precedence to residents in respect of hiring and maintaining employment do not lead to indirect discrimination against non-resident workers on the grounds set out in the Convention. The Committee notes the Government’s indication that the Labour Inspection Department has received only one complaint in relation to discrimination based on race, colour or national extraction between 2012 and 2015, as well as its indication that discrimination cases are uncommon. The Committee therefore once again asks the Government to indicate the specific measures taken to ensure that the practical application of section 2(5) of the Employment of Non-resident Workers Law (No. 21/2009) and section 2(4) of the Administrative Regulation on the Conditions or Responsibilities to be Established in the Employment Permit for Non-resident Workers (No. 13/2010) do not lead to indirect discrimination against non-resident workers on the grounds set out in the Convention with respect to hiring and job security. It also asks the Government to provide information on the measures taken to raise awareness amongst non-resident workers of relevant protective legislation, and also to enhance the capacity of competent authorities, including labour inspectors and other public officials, to identify cases of discrimination related to race, colour and national extraction and allow claims to be brought successfully.

Discrimination on the basis of political opinion. The Committee recalls its previous comments regarding section 300(1) and (2) of the Penal Code establishing the offences of “inciting, in a public gathering or by any means of communication, collective disobedience of public order of law, with an intention to destroy, alter or overturn the established political, economic or social system,” and of spreading “false or demagogic information that may frighten or unsettle the residents”. The Committee notes that the Government once again indicates that there have been no judicial decisions made with regard to section 300(1) and (2) of the Penal Code. The Committee once again asks the Government to provide information on the practical application of section 300(1) and (2) of the Penal Code, including measures taken or envisaged to ensure full application of the principle of non-discrimination in employment and occupation on the basis of political opinion as defined under Article 1(1)(a) of the Convention. It also asks the Government to continue to provide information on the number of persons convicted under these provisions and sentences imposed.

Article 5 of the Convention. Special measures of protection. The Committee recalls the Government’s intention to publish, by way of a separate regulation, a list of jobs in which women are prohibited from working as they constitute a danger to their maternal function. The Committee notes that the Government indicates that it will continue its efforts to consolidate occupational safety and health laws, and that the Government indicates that priority has been given to revising existing occupational safety and health laws concerning industrial, commercial and construction workplaces, such as Decree-Law No. 44/91/M (Regulation on Construction Safety and Health) and Decree-Law No. 67/92/M (Penalties for Violating the Regulation on Construction Safety and Health), but notes that no information has been provided on the progress made in the enactment of such an Occupational Safety and Health Charter. The Committee trusts that the Occupational Safety and Health Charter will be enacted soon, and that the measures contained in it will aim to protect the occupational safety and health of men and women on an equal footing, and that the prohibition of women’s employment in highly hazardous work will be limited to maternity protection. Please provide a copy of the text of the new Charter once it is adopted.

Enforcement. The Committee recalls its previous comments regarding the need to develop specific guidance for labour inspectors and judges to address cases of discrimination. It notes throughout the Government’s report that very few claims have been made to the Labour Affairs Bureau with regard to discrimination in employment and occupation. The Government indicates that the Labour Affairs Bureau organized a number of awareness-raising activities to enhance the public’s understanding of laws in relation to the principle of equality, as well as training activities for labour inspectors and other staff specifically on international labour standards and relevant laws. The Committee recalls that the absence of complaints regarding discrimination does not necessarily indicate that discrimination does not exist; rather, it is likely to reflect the lack of an appropriate legal framework, the lack of awareness of rights, as well as the lack of access to or the inadequacy of complaints mechanisms and means of redress, or fear of reprisals (2012 General Survey, 2012, paragraphs 790 and 870). The Committee therefore once again asks the Government to provide specific information on steps taken to raise the awareness of workers, employers and their organizations of the procedures available to address cases of discrimination in employment and occupation. The Committee continues to encourage the Government to organize awareness-raising activities regarding equality and non-discrimination for labour inspectors and judges, and requests detailed information on further steps taken in this regard. Please also continue to provide information on any relevant cases dealt with by the labour inspectors or the courts.