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Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19) - Macau Special Administrative Region (RATIFICATION: 1999)

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Previous comment

In order to provide an overview of issues relating to the application of ratified social security Conventions, the Committee considers it appropriate to examine Conventions Nos 17, 18, and 19 together.

Article 1 of the Conventions Nos 17, 18 and 19. The Committee takes note of the Government’s information that, during the period under review, Executive Order No. 26/2020 and Executive Order No. 27/2020 were enacted to increase the insurance premiums and the respective compensation due to work-related accidents and diseases, as to permanent total and partial incapacity, death of breadwinner, funeral expenses, and rehabilitation. Moreover, the minimum and maximum amounts to be considered for the provision and renewal of prosthetic appliances were also raised.

CMNT_TITLE

Previous comments

Article 5 of Convention No. 17. Compensation in the form of periodical payments in the event of permanent incapacity. The Committee takes note of the information provided by the Government in reply to its previous comments that, the Judiciary, as competent authority, establishes compensation in the cases of permanent incapacity or death due to work-related injuries only in the form of lump sum. The Committee also takes note of the Government’s information that it will continuously seek to improve the pertinent regulations and keep the Committee informed in this regard. The Committee wishes to remind the Government that the compensation of victims of occupational injuries who suffer permanent disability or of their dependents should aim at protecting them throughout the contingency period, which is best achieved through periodic payments regularly adjusted to accommodate substantial changes in the cost of living, such as to maintain the value of benefits throughout the payment period. In view of the above, and observing the absence of sufficient guarantees for the competent authority to be satisfied that the lump sum be properly utilized, the Committee requests the Government to make the necessary amendments to the national regulation(s) as to ensure that: (i) compensation paid to injured workers and their survivors is provided preferably in periodical payments; and (ii) in cases in which it is provided in the form of a lump sum, criteria is established so that the competent authority is satisfied that it will be properly utilized, to ensure full conformity with this provision of the Convention.

Article 6 of Convention No. 17. Waiting period. The Committee notes that, in response to its previous request, the Government confirms that, as per paragraph 2 of section 52 of Decree-Law No. 40/95/M, amended by Law No. 6/2015, from the day the responsible party for the payment receives the attestation of temporary incapacity for work, it must pay compensation to the injured worker every 15 days during the contingency. The Committee observes that, in practice, the injured worker will be paid compensation as from the fifteenth day after the receipt of the documentation that substantiates the incapacity to work. In light of the above and observing that the first payment is guaranteed later than the fifth day of the attested incapacity, the Committee requests the Government to make the necessary amendments to bring national regulation(s) into conformity with Article 6 of the Convention, so as to ensure that payments related to compensation concerning work-related accidents are guaranteed as of the fifth day from the beginning of the incapacity for work.

Article 7 of Convention No. 17. Additional compensation for the constant help of another person. The Committee takes note of the information provided by the Government in reply to its previous comments that, under section 14 of the Decree-Law No. 40/95/M, if the worker, who is temporarily incapacitated due to a work-related injury, requires constant help from another person, the accompanying person can receive a transportation allowance. The Committee also takes note of the Government’s indication that it will continue to review the compensation mechanism for occupational accidents and diseases to improve the support provided to injured workers. While taking note of that, the Committee recalls that Article 7 of the Convention requires the payment of additional compensation in all cases where the injury results in incapacity of such a nature that the injured worker must have the constant help of another person. The Committee therefore requests the Government to ensure that all injured workers, including those with partial permanent or temporary incapacity, are provided with additional compensation when the constant help of another person is required and to provide information on the measures taken to this effect.

The Committee reminds the Government of the possibility to avail itself of ILO technical assistance in this regard.

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The Committee notes the information provided by the Government, which answers the points raised in its previous direct request, and has no further matters to raise in this regard.

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Article 1(1) of the Convention. Equality of treatment. In its report received in August 2012, the Government refers to the adoption of new laws during the period covered by the report, namely: Administrative Regulation No. 10/2007, Labour Relations Law No. 7/2008 and Employment of Non-Resident Workers Law No. 21/2009, which repeal Decree-Law No. 24/89/M and Ordinance No. 12/GM/88.

The Committee notes with interest the adoption of these laws, in particular Law No. 21/2009, section 2(3) of which provides that non-resident workers shall be entitled to treatment no less favourable than that accorded to local workers with respect to labour rights and duties and conditions of work. Section 20 adds that employment relationships established with non-resident workers are governed by the general employment relationship regulations as regards rights, duties and guarantees.

As regards Decree-Law No. 40/95/M concerning compensation for industrial accidents and occupational diseases, the Government indicates that this law explicitly protects non-resident workers’ rights since any employers who fail to fulfil their obligations under section 62 of the law – which stipulates that employers must, by means of an insurance contract, transfer the responsibility for paying compensation to insurers who are authorized to make payments – will be liable to a fine ranging from 1,000 to 5,000 Macau patacas (MOP) (approximately US$125 to 625) for each worker concerned (section 66(1)). The Committee requests the Government to provide up-to-date information on the number of non-resident workers employed in its territory and the number and amount of fines imposed under section 66(1) of Decree-Law No. 40/95/M for each year from 2012 until the year of the next Government’s report on this Convention.

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Article 1, paragraph 1, of the Convention. Equality of treatment. The Committee notes that, according to statistical information from the Labour Affairs Bureau, there were approximately 100,000 non-resident workers employed on the territory of the Macau SAR in 2008, composed, inter alia, of nationals of the following countries which have ratified the present Convention: Australia, Mainland China, Indonesia, Malaysia, the Philippines and Thailand. The Government states that no matter whether the workers are local or non-local residents, the Government shall rigorously abide by the relative laws and regulations to guarantee the workers’ legitimate rights and interests to proper compensation. In this respect, Section 3, paragraph 3(d), of Decree‑law No. 24/89/M on labour relations provides that this decree shall not apply to working relationships between an employer and a non-resident worker, which are regulated by Order No. 12/GM/88. In accordance with Section 9(d)(4) of the latter, foreign workers’ employment contracts must first be registered with the Office of Employment Affairs which shall verify whether these contracts contain a clause for the provision of assistance in cases of occupational accidents and diseases. Please indicate whether, in practice, this clause ensures that contracts concluded with foreign workers are made subject to the provisions of Decree-law No. 40/95/M, as amended, on the compensation of industrial accidents and occupational diseases, in conformity with the principle of equality of treatment guaranteed by the Convention.

Application of the Convention in practice. With reference to its previous comments, the Committee notes the information supplied by the Government concerning the application in practice of section 9(d)(5) of Order No. 12/GM/88, of 1 February 1988, establishing the general regime for hiring non-resident workers. It notes, in particular, the declaration made by the Government that none of the non-local resident workers has been listed as undesirable, nor repatriated, for reasons of an industrial accident.

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The Committee takes due note of the Government’s first report and wishes to draw its attention to the following point.

Article 1, paragraph 1, of the Convention. The Committee notes the Government’s declaration that the legislation in force in Macau (SAR) with respect to occupational accidents is applicable to all workers, regardless of their country of origin. It further notes that the employment of non-resident workers is made conditional, inter alia, upon the mandatory conclusion by the employer of an insurance contract providing for assistance in case of occupational accidents. It observes, in this respect, that section 9(d) of Order No. 12/GM/88, of 1 February 1988, establishing the general regime for hiring non-resident workers, stipulates that foreign workers’ employment contracts must first be registered with the Office of Employment Affairs which shall verify whether these contracts contain, among other prerequisites: (i) a clause for the provision of occupational accident assistance; and (ii) a clause on the repatriation of "undesirable" workers, provided that in such cases insurance against occupational accidents shall be guaranteed (section 9(d)(4) and (5)). The Committee would be grateful if the Government would provide further information on the enforcement of the abovementioned provision on repatriation of "undesirable" workers and, in particular, on the manner in which it is guaranteed that such a provision may not be used against foreign workers by forcing them to leave Macau (SAR) following an occupational accident.