Hours of Work (Industry) Convention, 1919 (No. 1) - China - Macau Special Administrative Region (Ratification: 1999)

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Previous comment on Convention No. 1Previous comment on Convention No. 14Previous comment on Convention No. 106

In order to provide a comprehensive view of the issues relating to the application of the Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 1 (hours of work (industry)), 14 (weekly rest (industry)) and 106 (weekly rest (commerce and offices)) together.

Hours of work

Articles 2(b) and (c), 4 and 5 of Convention No.1. Variable distribution of working hours. Further to its previous comments, the Committee notes that the Government in its report refers to section 33(2) of Law No. 7/2008, which provides that the employer may, depending on the characteristics of the operation of the undertaking, agree with the worker that the daily working period exceeds the limits of 8 hours per day, provided that the worker has 10 consecutive hours of rest per day, totalling not less than 12 hours, and that the working period may not exceed 48 hours per week. The Committee also notes that under section 40(3) of the Law No. 7/2008, the organization of shift work shall be subject to the maximum limits of the normal working period and shall guarantee the worker 10 consecutive hours of rest per day, totalling not less than 12 hours, and the working hours may be fixed with continuous or interspersed working periods. In this respect, the Committee recalls that the averaging of hours of work in general is authorized in the Convention only over a reference period of one week, and provided that a daily limit of nine hours is required (Article 2(b)); in all the other cases in which the averaging of working hours is allowed over reference periods longer than a week, the circumstances are clearly specified, as follows: (i) in case of shift work, it shall be permissible to employ persons in excess of 8 hours in any 1 day and 48 hours in any 1 week, if the average number of hours over a period of three weeks or less does not exceed 8 per day and 48 per week (Article 2(c)); (ii) in those processes which are required by reason of the nature of the process to be carried on continuously by a succession of shifts, the daily and weekly limit of hours of work may be exceeded subject to the condition that the working hours shall not exceed 56 in the week on the average (Article 4); and (iii) in exceptional cases where it is recognized that the limits of 8 hours a day and 48 hours a week cannot be applied, but only in such cases, agreements between workers’ and employers’ organizations concerning the daily limit of work over a longer period of time may be given the force of regulations, provided that the average number of hours worked per week, over the number of weeks covered by such an agreement, shall not exceed 48 (Article 5). Therefore, the Committee requests the Government to take the necessary measures to bring the above provisions of the Law No. 7/2008 into conformity with the requirements of the Convention, and to provide information on any progress made in this regard.

Article 6. Temporary exceptions. Circumstances and limits. The Committee observes that section 36 of the Law No. 7/2008 providing for overtime: (i) only prescribes the circumstances under which an employer may request an employee to work overtime without the employee’s consent and remains silent on the circumstances under which resort to overtime can be made with the employee’s consent; and (ii) does not seem to fix any clear limits to additional hours. The Committee also observes that section 37(2) of the Law No. 7/2008 provides that additional hours performed at the request of the employer with the consent of the worker or at the initiative of the worker with the consent of the employer are remunerated at a rate 20 per cent higher than normal hours. The Committee recalls that: (i) temporary exceptions to normal hours of work are authorized in the Convention in very limited and well-circumscribed cases; (ii) regulations shall fix the maximum of additional hours; and (iii) the rate of pay for overtime shall not be less than one and one-quarter times the regular rate. Therefore, the Committee requests the Government to take the necessary measures, including the revision of Law No. 7/2008, to: (i) define the exceptional circumstances under which normal hours of work may be temporarily increased in industrial establishments; (ii) fix the maximum of additional hours allowed; and (iii) provide a rate of pay for overtime at least one and one-quarter times the regular rate, in accordance with this Article of the Convention.

Weekly rest

Articles 4 and 5 of Convention No. 14 and Articles 7 and 8 of Convention No. 106. Exceptions and compensatory rest. Following its previous comments on sections 42.2 (flexible weekly rest scheme) and 43.3 (work voluntarily performed by workers on their weekly rest day) of the Law No. 7/2008, the Committee notes that the Government indicates in its reports that: (i) due to the nature of the activities in industry and enterprises, and in order to promote the sustainable development of the society, a more flexible approach is adopted in the law to regulate the weekly rest days, while balancing the interests of both employers and employees; (ii) the 2020 amendment of Law No. 7/2008, adds the requirement of recording the workers’ voluntariness to perform work on weekly rest day; (iii) the provision does not provide for overtime remuneration as compensation for work performed on weekly rest day, but rather the compensatory rest should take precedence; and (iv) since the compensatory rest must be taken within 30 days of work, if the compensatory time off cannot be taken, the provision provides for overtime remuneration instead. The Committee requests the Government to take the necessary measures, including the revision of Law No. 7/2008, to ensure that in case of exceptions to the principle of weekly rest, all workers working it their weekly rest day benefit in respect of each period of seven days, to rest of a total duration at least equivalent to 24 consecutive hours, irrespective of any monetary compensation.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Articles 2, 5 and 6 of the Convention. Daily and weekly limits of hours of work. The Committee notes section 22 of the Labour Relations Law (Act No. 7/2008 of 1 January 2008) which permits, by way of agreement between the employer and employee, the hours of work to exceed the statutory eight hours per day and 48 hours per week, provided that the employee will have ten consecutive hours and a total of not less than 12 hours of rest per day, and that the working hours will not exceed 48 hours per week. The Committee recalls, in this respect, its previous comment in which it drew the Government’s attention to the requirements of the Convention that any exceptions to the normal duration of working hours in national legislation and practice constitute an “exceptional case” where it is recognized that the eight-hour and 48-hour limits cannot be applied (owing to pressure of work). While noting the Government’s explanation that the provision ensures an equitable distribution of hours over the work week by maintaining minimum levels of rest, the Committee is bound to repeat its earlier comment that, even for those specific exceptions to maximum working hours set out under Article 2(b) and (c), the Government must still ensure that the average number of hours over a period of three weeks or less does not exceed eight hours per day in addition to 48 hours per week. Further, the Committee recalls that any such exceptions also require prior consultation with the organizations of employers and workers concerned, and emphasizes again that an individual agreement between the employer and the employed person does not offer the adequate guarantees required by the Convention. Concerning the exceptions to the hours of work provided for under Article 4 for necessarily continuous processes, the Committee notes the Government’s statement that it is not in the position to provide the requisite list of such processes under Article 7(1). The Committee accordingly requests the Government to indicate how it ensures that the working hours of employees over the course of three weeks do not exceed the eight hour per day maximum, as required under Article 2(c) of the Convention. The Committee draws the Government’s attention in this respect to Part V, as well as to paragraphs 227 and 228 of its General Survey of 2005 on hours of work, which provides further explanations and examples of good practice with respect to the procedures for the authorization of extension of working hours.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the explanations provided by the Government concerning the scope of Article 12 of Decree-Law No. 24/89/M of 3 April 1989, which therefore applies to all industrial enterprises without exception. It also notes the Government’s statement that the draft Law on Labour Relations, which is currently being examined by the Legislative Assembly, will contain provisions relating to shift work, night work and continuous working (Article 4 of the Convention); the maximum number of additional hours that may be performed and the applicable wage rate (Article 6(2)), and the requirement for the employer to post notices notifying the workers of the hours of work and to keep a record of all additional hours performed (Article 8(1)), which are all points not addressed by the legislation that is currently in force. The Committee requests the Government to keep the Office informed of any developments in this respect and to provide a copy of the new legislative text once it has entered into force. Furthermore, noting that the above draft Law will contain numerous provisions relating to night work, the Committee permits itself to suggest that the Government might examine the possibility of ratifying the Night Work Convention, 1990 (No. 171), which contains the most recent standards for the protection of night workers.

Article 2. Daily hours of work. Further to its previous comment relating to Article 10(2) of Decree-Law No. 24/89/M, which allows the limit of eight hours in the day and 48 hours in the week to be exceeded on the basis of individual agreements between employers and workers, provided that no working day may exceed ten and a half hours, the Committee notes the Government’s indication that the extension of the limit of eight hours in the day is not an obligation, so that workers remain free to agree or not to perform additional hours. While noting the Government’s intention to facilitate economic development through the introduction of more flexible provisions relating to hours of work, the Committee is once again bound to recall that the Convention only allows the maximum limit to the daily hours of work to be exceeded under the very specific conditions set out in Article 2(b) (distribution of the hours of work over a week) and (c) (averaging of hours of work over a period of three weeks). The Convention also envisages other exceptions to the general rule of eight hours in the day and 48 in the week, but only under the strict conditions set out in Articles 3 (in the case of accident, urgent work or force majeure), 4 (continuous processes), 5 (averaging in exceptional cases), and 6 (permanent and temporary exceptions). Finally, the Committee emphasizes that exceptions from the eight-hour day require prior consultation with the organizations of employers and workers concerned, and indeed regulations made by the public authority after consultation with the organizations of employers and workers concerned, and that, accordingly, an individual agreement between the employer and the employed person does not offer the adequate guarantees required by the Convention and cannot therefore suffice in any case to authorize an extension of hours of work. In this respect, the Committee draws the Government’s attention to paragraphs 85–168 of the General Survey that it carried out in 2005 on Conventions Nos 1 and 30 on hours of work, which contain a detailed analysis of the requirements of the Convention in relation to the distribution of hours of work and the authorized exceptions. The Committee therefore requests the Government to review Article 10(2) of Decree-Law No. 24/89/M so as to bring it into conformity with the Convention and to keep the Office informed of any progress achieved in this respect.

Article 7, paragraph 1. List of exceptions. The Committee notes the Government’s indications that the organizations of employers and workers have not concluded any agreement under the terms of Article 5 of the Convention. It also notes that the Government has not issued any regulations making permanent or temporary exceptions. However, with regard to types of work classified as necessarily being carried on continuously within the meaning of Article 4, the Committee notes that the Government refers to certain sectors, such as restaurants, hotels, gaming, transport and other services, and that the draft Law on Labour Relations should contain precise provisions on working in shifts. The Committee hopes that the Government will be in a position to provide a precise list of the types of work classified as necessarily being carried on continuously within the meaning of Article 4 and requests it to keep the Office informed of any changes made in relation to exceptions from hours of work.

Part VI of the report form. Application in practice. The Committee notes the detailed information provided by the Government, particularly with regard to the number of contraventions reported in relation to hours of work for the period 2003–06. The Committee requests the Government to continue providing information on the application of the Convention in practice and on any difficulties encountered in this field.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes due note of the information supplied by the Government in its first report concerning the application of the Convention.

Article 1, paragraph 1, of the Convention. With reference to sections 3 and 12 of Legislative Decree No. 24/89/M on working relationships, the Committee would be grateful if the Government would clarify whether industrial workers are in fact excluded from the scope of application of the provisions on working time, and if so, to specify the legislative provisions regulating their hours of work.

Article 2. The Committee notes that section 10(2) of Legislative Decree No. 24/89/M allows for the extension of the eight hours per day and 48 hours per week limits based on individual agreements between employers and workers provided that no working day may exceed ten-and-a-half hours per day. In this respect, the Government’s attention is drawn to the fact that Article 2(b) of the Convention permits the eight-hour daily limit to be exceeded by no more than one hour and only with the agreement of employers’ and workers’ organizations or representatives. The Committee therefore requests the Government to take the necessary measures to bring its legislation into closer conformity with the requirements of the Convention in this respect.

Article 4. The Committee notes, under section 55 of Legislative Decree No. 24/89/M, special legislation will be enacted to regulate shift work, night work and continuous working. It also notes the Government’s statement that a draft instrument to reform existing legislation has already been prepared and is currently at an advanced stage of the legislative process. The Committee accordingly requests the Government to transmit a copy of the new legislation as soon as it is adopted.

Article 6, paragraph 2. With reference to section 11 of Legislative Decree No. 24/89/M, the Committee notes that no minimum rate for overtime pay is fixed as required under this Article of the Convention. It also notes that apart from the case of unforeseeable increases in workload, there seems to be no limit on the number of hours of overtime permitted per day. The Committee recalls, in this connection, that, in each specific case of authorized overtime, the maximum number of additional hours of work must be fixed and also that express provision must be made for overtime pay of no less than one and one-quarter times the regular rate of pay. The Committee therefore asks the Government to indicate the measures taken or contemplated to give full effect to the Convention in this regard.

Article 7, paragraph 1. The Committee would be grateful if the Government would supply in its next report detailed information on: (i) the enterprises which are deemed to be necessarily continuous in character; (ii) the working of any agreements falling within the meaning of Article 5 of the Convention; and (iii) the regulations on permanent and temporary exceptions, as required under this Article of the Convention.

Article 8, paragraph 1. The Committee notes the Government’s statement that no measure has as yet been implemented to compel employers to display official notices showing the hours of work. It also notes that existing legislation contains no provision requiring employers to maintain adequate records in an approved form of all additional hours worked. The Committee therefore requests the Government to take appropriate action to ensure that the enforcement measures provided for in this Article of the Convention are fully applied.

Part V of the report form. The Committee notes the statistical information concerning the number of workers, by occupational category and gender, for the period 1999-2002. The Committee would be grateful to the Government for continuing to provide information on the practical application of the Convention, including, for instance, extracts from official reports and information on any difficulties encountered in the application of the Convention.