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Comments adopted by the CEACR: China - Macau Special Administrative Region

Adopted by the CEACR in 2020

C087 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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.

C092 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the Government’s report on the application of Conventions Nos 92 and 108. In order to provide an overview of the issues to be addressed in relation to the application of maritime labour Conventions, the Committee considers it appropriate to examine these instruments in a single comment, as set out below.

Accommodation of Crews Convention (Revised), 1949 (No. 92)

Article 1 of the Convention. Scope of application. The Committee notes the information provided by the Government that, according to the report of the Maritime and Water Affairs Bureau, there are no ships applicable to this Convention among those registered in the Macau Special Administrative Region (SAR). It also notes that the Government refers to the Guide for the Inspection of Local Vessels (hereinafter, the Guide) for the inspection of local merchant and auxiliary vessels with a length of 20 meters or more, which was published through Notification No.4/2016 of the Maritime and Water Affairs Bureau in the Bulletin of Macau SAR Gazette on 23 November 2016. The Government specifies that Chapter 6 “Equipment of Crew Cabin” of the Guide applies to motor merchant vessels of 500 gross tonnage or more, merchant and auxiliary vessels of 1,000 gross tonnage or more as well as, where applicable, merchant vessels, auxiliary vessels and tugboats of 200 gross tonnage or more. The Government further informs that the Guide incorporates the specific technical requirements of the Convention and that no new constructed vessel which would be covered by the Guide was registered during the reporting period. Noting the adoption of the above-mentioned “Guide for the inspection of local vessels”, the Committee requests the Government to provide information concerning any new developments that would bring to bear the application of the Convention and to indicate the number of ships of 200 tons and above registered in the Macau SAR.

Seafarers’ Identity Documents Convention, 1958 (No. 108)

Article 3. Continuous possession of seafarer’s identity document. The Committee previously requested the Government to indicate how it gives effect to this Article of the Convention. It notes the Government’s reference to section 2, paragraph 3, of Decree No. 12/99 /M of 22 March 1999, which stipulates that the identity document must be held by the seafarer and shall be presented upon request by the maritime, consular or police authority. The Committee takes note of this information which addresses its previous request.
Article 4(2), (3) and (6). Form and content. The Committee requested the Government in its previous comment to revise the standard seafarer’s identity document in order to include the place of issue, the holder’s place of birth and physical characteristics, as required under the Convention. It notes the Government’s indication that there are no developments in this regard. The Committee requests the Government to take the necessary measures as soon as possible to ensure full conformity with this Article of the Convention. The Committee further requests the Government to provide, once revised, a copy of the new identity document.
Article 5(2). Readmission to the territory. The Committee previously requested the Government to take the necessary action to ensure that seafarers be readmitted into the Macau SAR at least for one year after the expiration date of their identity document. The Committee notes the Government’s indication that, although there is no formal legislation explicitly addressing this matter, the security police station responsible for the entry and exit of the SAR follows the provisions of the present Convention, thus permitting seafarers holding an identity document to enter the territory at least one year after its expiration. The Committee observes however that, in the absence of a legal framework, consistent compliance with this requirement of the Convention cannot be ensured. The Committee therefore requests the Government once again to adopt the necessary measures in order to comply in law and in practice with this provision of the Convention.

C098 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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 (see legislative developments and Articles 1 and 2 below), 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 referred to the need to adopt specific laws on freedom of association and point to anti-union practices in some enterprises. 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) but observed that the Government had failed to address the concrete allegations of unfair dismissals of union members and teachers. The Committee reiterates its request to the Government to provide its comments on those specific allegations.
Legislative developments. The Committee previously referred to its comments made under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in which it recalled that while the Labour Relations Law adopted in 2008 contained some provisions that prohibit anti-union discrimination and provided sanctions for such acts, it did not include a chapter on the right to organize and collective bargaining, and that the draft Law on Fundamental Rights of Trade Unions, which would give effect to these rights, had been pending adoption since 2005. Referring to its comments made under Convention No. 87, the Committee strongly encouraged the Government to intensify its efforts in order to achieve the adoption, in the near future, of a legislation that would explicitly grant the various rights enshrined in the Convention and address the Committee’s pending comments.
The Committee notes the Government’s indication in its supplementary report that a research study, initiated in 2016 to understand the social conditions required for initiating a discussion on a Trade Union Law, was finalized 2019. The Government indicates that, in light of the study’s recommendations, it will begin the early stage of the legislation process of the Trade Union Law and is planning to undertake a public consultation to allow ample discussion and 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 recalls that the draft Law on Fundamental rights of Trade Unions has been pending adoption for fifteen years. Referring to its more detailed comments made in this regard under Conventions No 87, the Committee urges the Government to intensify its efforts to achieve the adoption, in the near future, of a legislation that will explicitly grant the various rights enshrined in the Convention and address the Committee’s pending comments. The Committee requests the Government to provide information on any developments in this regard.
The Committee also previously requested the Government to provide information on any developments regarding the adoption of legislative frameworks regulating the rights of seafarers and part-time workers and expressed the expectation that any such instruments would, in full conformity with the Convention, allow these categories of workers to exercise their right to organize and to bargain collectively. The Committee takes due note of the information provided by the Government and refers to its more detailed comments made under Convention No. 87.
Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. Having previously noted that fines imposed by section 85(1)(2) of the Labour Relations Law for acts of discrimination against workers due to their union membership or the exercise of their rights might not be sufficiently dissuasive, particularly for large enterprises (from 20,000 to 50,000 Macau patacas (MOP) equivalent to US$2,500–6,200), the Committee requested the Government to take the necessary measures to strengthen the existing pecuniary sanctions applicable to acts of anti-union discrimination in order to ensure their sufficiently dissuasive character. It also requested the Government to provide clarification on the use, if any, of sanctions provided for in the Penal Code, to which the Government made reference. The Committee notes the Government’s indication that: (i) heavy penalties are already imposed for illegal acts violating workers’ rights and the Government will continue to carefully review and improve the laws and regulations in the field of labour; (ii) violations of the Labour Relations Law are divided into administrative violations and “minor violations”, which are more serious, have a criminal nature and to which the Penal Code applies; (iii) in case an employer deters an employee from exercising his or her rights or subjects the employee to any adverse treatment for exercising such rights (section 10(1) of the Labour Relations Law) and the act constitutes a criminal offence, the Labour Affairs Bureau will actively follow-up, institute a punishment procedure and impose a fine; and (iv) upon refusal by the employer to pay the fine, judicial proceedings will be initiated, in which the court can impose a fine under the provisions of the Penal Code. While taking due note of the information provided, the Committee observes that there do not seem to have been any concrete measures taken to increase the penalties foreseen for acts of anti-union discrimination, which therefore, still appear to be insufficiently dissuasive, particularly for large enterprises. The Committee notes in this regard that representative organizations of workers also emphasize the need to increase the amount of penalties and fines for anti-union discrimination in order to enhance the deterrence of such acts. They further consider that there is evidence of anti-union practices in some enterprises in which enterprise regulations require employees who join trade unions and assume trade union functions to inform the management. In light of the above, the Committee requests the Government once again to take the necessary measures, in consultation with the social partners, to strengthen the pecuniary sanctions applicable to acts of anti-union discrimination in order to ensure their sufficiently dissuasive character. The Committee requests the Government to provide information on any progress in this regard.
The Committee also previously noted the 2014 ITUC observations, that section 70 of the Labour Relations Law, which allows rescission of contract without just cause accompanied by compensation, was in practice used to punish union members when they take part in union activities or industrial actions, and requested the Government to take the necessary measures, including legislative, if necessary, to ensure that this provision is not used for anti-union purposes. In its previous comment the Committee noted that the Government stated that between 2014 and May 2019, the Labour Affairs Bureau had not received any complaints of anti-union dismissals but did not elaborate on any measures taken to address the ITUC concerns. The Committee notes the Government’s indication in its supplementary report that between June 2019 and May 2020 the Labour Affairs Bureau did not receive any complaint of antiunion dismissals. Recalling that anti-union acts may not, in practice, always result in the filing of complaints to the competent authorities, the Committee requests the Government once again to take the necessary measures, including of a legislative nature, to ensure that termination of employment contract under section 70 of the Labour Relations Law is not used for anti-union purposes.
Article 2. Adequate protection against acts of interference. The Committee had previously noted that sections 10 and 85 of the Labour Relations Law did not explicitly prohibit all acts of interference as described in Article 2 of the Convention, or guarantee adequate protection by means of dissuasive sanctions and rapid and effective procedures. In its previous comment, it therefore requested the Government to take the necessary measures to ensure that the relevant legislation includes express provisions to this effect. The Committee notes that the Government reiterates the procedure explained above relating to obstruction by the employer of the exercise of employees’ rights and states that it will continue its efforts to work towards the goals set by the Convention. Recalling once again that the applicable legislation (sections 10 and 85 of the Labour Relations Law and section 4 of the Regulation on the Right of Association) do not explicitly prohibit all acts of interference as described in Article 2 of the Convention, the Committee emphasizes the need for legislation to explicitly protect workers’ and employers’ organizations against any acts of interference by each other or each other’s members, including, for instance, acts which are designed to promote the establishment of workers’ organizations under the domination of employers or employers’ organizations, and to make express provisions for rapid appeals procedures against such acts, coupled with effective and dissuasive sanctions. In light of these considerations, the Committee requests the Government once again to take the necessary measures to include in the relevant legislation provisions explicitly prohibiting acts of interference and providing for sufficiently dissuasive sanctions and rapid and effective procedures against such acts.
The Committee also previously requested the Government to provide statistical information on the functioning, in practice, of the Labour Affairs Bureau and the Labour Tribunal, including the number of cases of anti-union discrimination and interference brought before them, the duration of the proceedings and their outcome. In its previous comment, the Committee noted the Government’s indication that between June 2016 and May 2019 one case was opened on the allegations that an employee had been suspended for participating in a procession but it was later found that it was due to poor performance, and that no decisions were found before the courts that would deal with cases of discrimination or interference. The Committee notes the Government’s indication in its supplementary report that between June 2019 and May 2020 the Labour Affairs Bureau did not receive any complaints concerning the suspension of employees because of participation in demonstrations. The Committee requests the Government to continue to provide statistical information on the functioning, in practice, of the Labour Affairs Bureau and the Labour Tribunal with regard to allegations of anti-union discrimination and interference brought before them, the duration of the proceedings and their outcome.
Articles 1, 2 and 6. Protection of public servants not engaged in the administration of the State against acts of anti-union discrimination and interference. The Committee previously observed that the General Provisions on the Personnel of the Public Administration in Macao did not contain any provisions against anti-union discrimination and interference and that the Government did not indicate any other specific provisions that would explicitly provide protection to public servants against acts of anti-union discrimination and interference. The Committee requested the Government to take the necessary measures to amend the legislation so that it explicitly prohibits acts of anti-union discrimination and interference and grants public servants not engaged in the administration of the State adequate protection against such acts. The Committee notes that the Government reiterates that protection of civil servants against discrimination or interference for participating in trade union activities is guaranteed but observes once again that it does not point to any specific legislative provisions to this effect. In these circumstances, recalling that the scope of the Convention covers public servants not engaged in the administration of the State, the Committee requests the Government once again to take the necessary measures, including of a legislative nature, to explicitly prohibit acts of anti-union discrimination and interference and grant public servants not engaged in the administration of the State adequate protection against such acts.
Articles 4 and 6. Absence in legislation of provisions on collective bargaining for the private sector and public servants not engaged in the administration of the State. In its previous comments, the Committee requested the Government to take the necessary measures to ensure the full application of Article 4 of the Convention both for the private sector and public servants not engaged in the administration of the State, whether through the adoption of the draft Law on Fundamental Rights of Trade Unions or any other legislation. The Committee notes the Government’s statement that it always conducts discussions and consultations with the social partners, either through the tripartite consultation platform of the Standing Committee for the Coordination of Social Affairs in the private sector, which has become an essential platform to communicate, negotiate and reach consensus and helps construct stable and harmonious employer–worker relations, or through the permanent consultation mechanism established by the Civil Service Pay Review Council to formulate standards and procedures for pay adjustment in the civil service. The Government indicates that several laws and regulations on the conditions of work of civil servants are currently being revised and that through the different consultation channels, civil servants can express their opinions on relevant matters. Recalling that the Convention tends to essentially promote bipartite negotiations of terms and conditions of employment and that the establishment of simple consultation procedures instead of real collective bargaining procedures is not sufficient, the Committee requests the Government once again to take the necessary measures in the very near future to ensure the full application of Article 4 of the Convention both for the private sector and public servants not engaged in the administration of the State, whether through the adoption of the draft Law on Fundamental Rights of Trade Unions or any other legislation, and to provide information on any developments in this regard.
Collective bargaining in practice. The Committee notes that the Government has not conducted any relevant statistical analysis on collective agreements reached. The Committee requests the Government once again to provide statistics as to the number of collective agreements concluded, specifying the sectors concerned, their level and scope, as well as the number of enterprises and workers covered.

C144 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the observations made by the relevant representative organizations of workers, communicated together with the Government’s report. The Government does not, however, name these organizations. According to the report, the observations recognize the critical role played by the Standing Committee for the Coordination of Social Affairs (CPCS) in promoting consensus among the tripartite partners, but indicate that measures are needed to ensure the full functioning of the CPCS as a tripartite coordination mechanism. The Government is requested to provide its comments in this respect.
Articles 2 and 5 of the Convention. Effective tripartite consultations. The Committee previously requested the Government to provide information on the functioning of the CPCS and the manner in which it ensures effective tripartite consultations and on the content and outcome of such consultations. The Government reports that the CPCS held consultations during the reporting period on the matters relating to international labour standards set out in in Article 5(1) of the Convention. The Committee notes that the consultations included the discussion of relevant annual reports submitted by the Macau Special Administrative Region on the application of the international labour Conventions, the examination of proposals for the denunciation of ratified Conventions, and the re-examination of unratified Conventions and Recommendations to which effect has not yet been given. The Government indicates that, during the meetings, the representatives of employers and employees also discussed the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Convention on the Right to Organise and Collective Bargaining, 1949 (No. 98). The Government further indicates that, during the reporting period, the CPCS has held several meetings to discuss, comment and advise on a number of legislative proposals on labour relations, minimum wage of employees, part-time job labour relations, regulation on construction safety and health, as well as on penalties for violating the regulation on construction safety and health. The Committee requests the Government to provide detailed information in its next report on the measures taken to ensure effective tripartite consultations within the CPCS. The Committee further requests the Government to provide updated information on the specific content and outcome of the tripartite consultations held on the matters relating to international labour standards covered by Article 5(1) of the Convention, including: government replies to questionnaires on Conference agenda items (Article 5(1)(a)); the submission of instruments adopted by the Conference to the National Assembly (Article 5(1)(b)); the re-examination at appropriate intervals of unratified Conventions and Recommendations to which effect has not yet been given (Article 5(1)(c)); questions arising out of reports to be presented on the application of ratified Conventions (Article 5(1)(d)); and the possible denunciation of ratified Conventions (Article 5(1)(e)).
In the context of the global COVID-19 pandemic, the Committee recalls the comprehensive guidance provided by international labour standards. It encourages the Government to engage in tripartite consultation and social dialogue more broadly as a solid foundation for developing and implementing effective responses to the profound socio-economic impacts of the pandemic. The Committee invites the Government to provide updated information in its next report on measures taken in this respect, in accordance with Article 4 of the Convention and Paragraphs 3 and 4 of Recommendation No. 152, including with regard to steps taken to build the capacity of the tripartite constituents and strengthen mechanisms and procedures, as well as challenges and good practices identified.
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