Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106) - 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)

Article 6(2) and (3) of the Convention. Simultaneous weekly rest and the day of weekly rest. In its previous comment, the Committee had noted the observations of the International Trade Union Confederation (ITUC), which alleged that certain provisions of the Labour Relations Law represented a particular risk of abuse. In this respect, the ITUC observed that section 42(2) allows flexible arrangements of four paid rest days in every four weeks, if the employer and the employee so agree, and section 43(3) permits workers to work voluntarily on a weekly rest day and receive either a compensatory rest day within 30 days or one day’s basic salary. The ITUC alleged that it would be very difficult to verify the “voluntary” character of the worker’s decision which may easily be falsified under the pressure of the employer. Finally, the Committee noted that simultaneous weekly rest was an essential principle of the Convention and requested the Government to consider favourably the adoption of legislative measures to provide that the weekly rest period shall, wherever possible, be granted simultaneously to all persons concerned.

The Committee notes the Government’s reply to the observations of ITUC, received on 15 January 2014, in which the Government indicates that a flexible weekly rest scheme is important in industries that carry out continuous economic activities. In this respect, the Committee notes the 2013 statistical information contained in Government’s reply, according to which 66 per cent of employees (approximately 225,000 out of 364,300) were employed in such industries, including services in wholesale and retail, hospitality and catering, gambling, construction, transport, storage and communication. While noting the Government’s explanation, however, the Committee recalls that a day of weekly rest provided simultaneously to all workers is necessary to enable them to draw full benefit of the weekly break in terms of family and social life. Noting the Government’s indication that it is currently reviewing its Labour Relations Law, the Committee requests the Government to take appropriate measures to ensure that the weekly rest period should be granted simultaneously to all workers.

Article 7 (read in conjunction with Article 11(a)) and Article 8. Permanent and temporary exceptions. Compensatory rest. The Committee recalls its previous comments concerning section 42(2) of the Labour Relations Law, which permits the parties to agree to replace the frequency of weekly rest with a period of four paid rest days for every four weeks of work, and section 43(4)(1) and (2), which permits employees to volunteer to work on a weekly rest day and receive monetary compensation in return. The Committee notes, in this respect, that the Government has provided no further explanations concerning how social (as well as economic) considerations were taken into account when formulating special weekly rest schemes or how it was ensured that the types of establishments subject to weekly rest schemes are limited to those expressly covered by the schemes; rather, the Government merely repeats the economic considerations that manifested the above provisions. The Committee recalls that, firstly, the Convention permits the application of special weekly rest schemes, where appropriate, only to specified categories of persons or specified types of establishments, regard being paid to all proper social and economic considerations. Secondly, it requires compensatory rest to be granted in all cases of temporary exemptions to the normal weekly rest schedule, irrespective of any financial compensation. Finally, the duration of the rest period should be no later than three weeks under Paragraph 3 of the Weekly Rest (Commerce and Offices) Recommendation, 1957 (No. 103). The Committee accordingly requests the Government to take measures to revise its Labour Relations Law without delay to regulate any permanent or temporary exceptions to the weekly rest system applicable to industrial undertakings in a manner that gives full effect to the requirements of these Articles of the Convention.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Articles 6, 7 and 8 of the Convention. Entitlement to weekly rest – Permanent and temporary exemptions. The Committee notes the comments of the International Trade Union Confederation (ITUC), which were received on 1 September 2013 and transmitted to the Government on 20 September 2013, concerning the application of the Convention. In its observations, the ITUC refers to the Labour Relations Law (Decree No. 7/2008), which entered into force on 1 January 2009, and indicates that there is no provision requiring the application of weekly rest to the whole staff of the establishment collectively. The ITUC also draws attention to the fact that the permitted exceptions to the basic 24-hour weekly rest rule are defined loosely in the Labour Relations Law, and are subject to the unilateral decision of the employer. Moreover, the ITUC refers to certain provisions of the Labour Relations Law which represent a particular risk of abuse, for instance, section 42(2) which allows flexible arrangements of four paid rest days in every four weeks, if the employer and the employee so agree, and section 43(3) which permits workers to work voluntarily on a weekly rest day and receive either a compensatory rest day within 30 days or one day’s basic salary. The ITUC alleges that it would be very difficult to verify the “voluntary” character of the worker’s decision which may easily be falsified under the pressure of the employer. Finally, with reference to migrant workers, the ITUC notes that the Employment of Foreign Labour Law does not contain specific provisions on weekly rest protection and refers to 2006 inspection statistics showing that 41 per cent of all weekly rest infringements concerned non-resident workers. The Committee requests the Government to transmit any comments it may wish to make in reply to the observations of the ITUC. The Committee also requests the Government to respond to the points raised in the previous direct request regarding the application of Articles 2, 6 and 7 of the Convention.

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

Article 2 of the Convention. Scope of application. Further to its previous comment concerning the legislation applicable to domestic workers, the Committee notes the Government’s indication that the new draft Law on Labour Relations, which will also apply to domestic workers, is currently being examined by the Legislative Assembly and that the draft Law should be adopted very soon. The Committee requests the Government to keep the Office informed of any development in this respect and to provide a copy of the new legislative text once it has been adopted.

Article 6, paragraphs 2 and 3. Simultaneous weekly rest and the day of weekly rest. The Committee notes the Government’s explanations to the effect that economic transformations and the needs of the service industry make it difficult to assign a fixed day of weekly rest. The principle of simultaneous weekly rest is however an essential principle of the Convention, which also conditions the existence of permanent and temporary exemptions, as envisaged in Articles 7 and 8 of the Convention. The Committee therefore considers that, in the same way as Article 192 of the General Regulations for the Public Administrative Personnel in Macau, which provides that Saturday and Sunday are the days of weekly rest, Decree-Law No. 24/89/M should contain an analogous provision. It accordingly requests the Government to consider favourably the adoption of legislative measures to designate the day of rest established by traditions or customs as the weekly day of rest, and to provide that the weekly rest period shall, wherever possible, be granted simultaneously to all the persons concerned in each establishment, as required by this Article of the Convention.

Article 7 (read in conjunction with Article 11(a)). Special weekly rest schemes. The Committee notes the Government’s indication that, although section 18 of Decree-Law No. 24/89/M – which establishes that whenever the regulation respecting the weekly rest period of 24 hours cannot be applied by reason of the nature of the economic activity, workers shall benefit from a period of four consecutive days’ rest in every four weeks – does not enumerate the sectors, professions and activities concerned, this does not imply that employers may freely delay the weekly rest, as the enterprise has to justify itself by providing proof that the normal weekly rest scheme cannot be applied before an exception may be granted. In this respect, the Committee wishes to recall that special weekly rest schemes are subject to the requirements set out in Article 7 of the Convention, namely: (i) special schemes have to have regard to all proper social and economic considerations; (ii) all persons to whom such special schemes apply shall be entitled, in respect of each period of seven days, to rest of a total duration at least equivalent to the period provided for in Article 6, that is 24 hours; and (iii) any measures regarding the application of special weekly rest schemes shall be taken in consultation with the representative employers’ and workers’ organizations concerned. Furthermore, Article 11(a) of the Convention provides that each Member shall provide lists of the categories of persons and the types of establishment subject to special weekly rest schemes. The Committee therefore reiterates its request and asks the Government to indicate: (i) the manner in which social, and not only economic considerations are taken into account in the context of special weekly rest schemes; (ii) the measures which ensure to the workers concerned a weekly rest period of a total duration of 24 hours for each period of seven days; and (iii) the types of establishment currently subject to special weekly rest schemes, with an indication of the number of workers covered by these schemes and an explanation as to why the weekly rest day is delayed.

Part V of the report form. Application in practice. The Committee notes the detailed information provided by the Government for the period 2003–06. The Committee requests the Government to continue providing general information on the application of the Convention in practice, including statistics on the number of workers covered by the legislation giving effect to the Convention, extracts from reports of the inspection services indicating the number of contraventions reported to the rules relating to the weekly rest period and the penalties imposed, copies of collective agreements containing clauses on the weekly rest period, etc.

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

The Committee notes with interest the Government’s first report on the application of the Convention and wishes to draw attention to the following points.

Article 2 of the Convention. The Committee notes the Government’s statement that workers carrying out domestic work are excluded from the scope of Legislative Decree No. 24/89/M because domestic work used to be carried out solely by non-resident workers although this is no longer the case. The Government indicates that in order to remedy this situation, domestic workers will come within the scope of the new draft labour law which is currently at an advanced stage of the legislative process. The Committee requests the Government to provide full information on the legislative changes once they have become effective and to forward a copy of any relevant text.

Article 6, paragraphs 2 to 4. The Committee notes that there seems to be no legislative provision dealing with the issues of simultaneous weekly rest for all the persons concerned in each establishment, the regular day of rest established by tradition or custom, and the respect for the traditions and customs of religious minorities in matters of weekly rest. It therefore requests the Government to supply additional explanations on these points. Moreover, the Committee notes that according to the Government’s report, civil servants are entitled to two weekly rest days, i.e. Saturday and Sunday. It therefore asks the Government to specify the legal provisions regulating the weekly rest for civil servants and to transmit a copy of any relevant text.

Article 7, paragraph 1, read in conjunction with Article 11(a). The Committee notes that under section 18 of Legislative Decree 24/89/M, where it is not feasible to apply the 24-hour weekly rest rule due to the nature of the sector of economic activity, workers must be given a rest of four consecutive days for each four-week work period. In this connection, the Committee wishes to refer to Paragraph 3(a) of the Weekly Rest (Commerce and Offices) Recommendation, 1957 (No. 103), which indicates that persons to whom such special schemes apply should not work for more than three weeks without receiving the rest periods to which they are entitled. It accordingly requests the Government to specify the types of establishments which are currently subject to special weekly rest schemes, the number of workers affected by those schemes and the reasons for the deferral of the rest day.

Article 8, paragraph 2. While noting the general indications provided by the Government in its report with regard to the role of the tripartite Council of Social Consultation in formulating socio-labour policies, the Committee requests the Government to clarify the manner in which the employers’ and workers’ organizations concerned were consulted in determining the circumstances in which temporary exemptions may be granted.

Part V of the report form. The Committee would thank the Government for continuing to provide general information on the application of the Convention in practice, including for instance statistics on the number of workers covered by the relevant legislation, extracts from reports of the labour inspection services showing the number and nature of contraventions reported, full particulars on authorized cases of postponement of the rest day or temporary exemptions, etc.