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

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - 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 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 observations referred to the need to adopt specific laws on freedom of association. 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).

Articles 2 and 3 of the Convention. Right to organize of all categories of workers. Right of organizations to organize their activities. The Committee recalls that it had previously noted the Government’s indication that freedom of association, procession and demonstration, as well as the right and freedom to form and join trade unions and to strike, are guaranteed to all Macao residents by section 27 of the Basic Law of the Macao Special Administrative Region, and that in line with section 2(1) of the Regulation on the Right of Association (Law No. 2/99) everyone can form associations freely and without obtaining authorization. The Committee had also noted that the draft Law on Fundamental Rights of Trade Unions, which was meant to give effect to the right to organize and collective bargaining, had been pending adoption since 2005.

In its previous comment, the Committee noted the Government’s indication that the draft Law on Fundamental Rights of Trade Unions had been submitted to the legislative council and vetoed for the tenth time. In April 2019, those who oppose the draft law considered that many substantive and procedural laws already exist to protect workers and that the social situation had changed since the first draft was submitted, as a result of which the draft law does not reflect the needs of the current society. While the Government did not oppose the enactment of the trade union law at an appropriate time, it considered that it had to listen to the opinions of all members of society and the relevant stakeholders to respond to the societal situation and tailor the law and regulations accordingly. The Government indicated that since 2016, a research study had been ongoing on the essential social conditions for the discussion of the draft Law on Fundamental Rights of Trade Unions. The Government expected this study to be finalized in the second half of 2019. The Committee also noted that, in their observations, the representative organizations of workers had considered that the absence of a law on trade unions and collective bargaining constituted a severe legislative loophole and they remained in favour of enacting a set of concrete and specific laws to truly guarantee and protect the right to form, join and represent trade unions. Bearing in mind the views expressed by workers’ organizations and recalling that the draft Law on Fundamental Rights of Trade Unions had been pending adoption for more than a decade, the Committee urged the Government to intensify its efforts to achieve consensus on the draft Law and to bring about its adoption in the near future, and to inform the Committee of the results of the above-mentioned study.

The Committee notes the Government’s indication in its supplementary report that the study, finalized in 2019, advised the Government to review and improve the labour policy on a gradual basis to better adapt to the socio-economic environment of the region and to undertake such review in accordance with the Basic Law and international conventions. The Government further indicates that, to improve the labour legislation on a gradual basis and take into account the long term development of society, it will begin the early stage of the legislation process of the Trade Union Law and is planning to undertake a public consultation in the third quarter of 2020 to allow ample discussion to find a consensus that takes minority opinions into account, and thus 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 is bound to note with regret that the draft Law on Fundamental rights of Trade Unions has been pending adoption for fifteen years. The Committee therefore once again urges the Government to intensify its efforts to achieve consensus on the draft Law and to bring about its adoption in the near future. The Committee also reiterates its expectation that this Law will explicitly grant the rights enshrined in the Convention to all categories of workers (with the only permissible exception of the police and the armed forces), including domestic workers, migrant workers, self-employed workers and those without an employment contract, part-time workers, seafarers and apprentices, so as to ensure that freedom of association, including the right to strike, can be effectively exercised. The Committee requests the Government to inform of all developments in that regard.

In the same vein, the Committee also previously requested the Government to provide information on developments regarding the adoption of legislative frameworks regulating rights of specific categories of workers, as provided for in section 3(3) of the Labour Relations Law. The Committee noted in this regard that: (i) the draft Part-Time Labour Relations Law was submitted to the Standing Committee in 2018 but due to the need for a more comprehensive discussion, the Government resubmitted the draft law again for further comments from workers’ and employers’ representatives; and (ii) the draft Seafarers’ Labour Relations Law was still under discussion to ensure its compatibility with the relevant international Conventions. The Committee had further noted the Government’s reiteration that while these draft laws are specialized regulations to address the specific characteristics of labour relations in the above sectors, the basic regulations concerning these workers are contained in the Labour Relations Law and workers in all industries, including seafarers and part-time workers, are entitled to freedom of association, organization and the right to participate in trade unions. 

Taking due note of the Government’s prior explanation and the absence of any updated information, the Committee once again requests the Government to continue to provide information on developments regarding the adoption of legislative frameworks regulating rights of specific categories of workers, including part-time workers and seafarers, and to indicate whether these instruments include any provisions on the promotion and protection of the rights granted in the Convention. The Committee expects that any legislative frameworks regulating rights of specific categories of workers will be in full conformity with the Convention.

Application of the Convention in practice. In its previous comment the Committee noted the statistics provided by the Government on the number of trade unions (408 registered workers’ organizations, out of which 49 involve civil servants as of April 2019), as well as the detailed information on dispute settlement of labour disputes involving more than ten workers. The Committee also took note of the measures that the Government indicated to have taken to protect workers’ freedom of association and assembly and improve labour conditions as well as the Government’s statement that, in order to formalize the employment agency system, it had proposed the Employment Agency Bill to the legislative council. The Committee welcomes the updated statistics provided by the Government on the number of trade unions and observes that by May 2020, there were 440 registered workers’ organizations, which shows that, in comparison to the numbers of 2019, and as indicated by the Government, the number of registered worker-related associations continued to rise. The Committee also takes note of the detailed updated information on dispute settlement of labour disputes involving more than ten workers. The Committee encourages the Government to continue to provide statistics as well as other relevant data in relation to the application of the Convention in practice.