Demande directe (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Articles 2, 3 and 5(a) of the Convention. Need for effective cooperation between the labour inspection services and the justice system. The Committee notes that, according to section 8(4) of Administrative Regulation No. 26/2008 on the rules for the conduct of labour inspections, where employers fail to comply with the orders of the labour inspection service for the payment of amounts due to workers, the issue is referred to the courts. The Government indicates that meetings have been held between the labour inspection service and the department of justice in order to examine ways to improve the work flow between them; however, the Government was not in a position to identify any court cases relative to the application of the Convention. Recalling its general observation of 2007 on the importance of cooperation between the labour inspection and the justice system, the Committee requests the Government to provide information on the outcome of cases referred to the judicial authorities in conformity with section 8(4) of Regulation No. 26/2008 and to consider a mechanism for the recording of judicial decisions, which would be accessible to the labour inspectorate for the determination of priority areas of control.

Specific cooperation aimed at combating illegal work taking into account the objectives of the Convention. In reply to the Committee’s previous comments on joint operations taking place between the labour inspectorate and the public security police forces and customs authorities in order to combat illegal work, the Government indicates that: (i) cases of illegal work are dealt with not by labour inspectors but by non-inspector grade personnel who have received training in order to carry out inspections; (ii) the role of the personnel responsible for inspections (non-inspector grade) is to assist the police by checking the papers of the employed persons or taking statements by witnesses; all other duties such as investigation, note-taking, transfer to the Public Prosecutions Office, are performed by the criminal police which has authority on the matter under section 16 of Act No. 6/2004 on illegal entry, illegal stay and deportation and section 44 of the Criminal Procedure Act; (iii) if the criminal police discovers contraventions in violation of the two aforementioned laws, it will inform the Labour Affairs Bureau of the matter so that the Bureau may launch administrative procedures against the violators (employers); the Bureau has exclusive competence in this regard under the Regulation on the prohibition of illegal work and the Act on hiring non-resident workers; and (iv) the Bureau will instruct the employer to pay the worker concerned the remuneration or compensation due to him/her as the consequence of the labour relationship and if the employer still fails to pay, the Bureau will inform the Public Prosecutions Office of the case, so that the latter may assist in solving the case (section 2(1) of the Regulation on the Work of the Labour Inspection Department of the Labour Affairs Bureau approved by Decree-Law No. 60/89/M). Therefore, regardless of the status of the worker, the Labour Affairs Bureau will always endeavour to safeguard the realization of the rights and interests of workers.  

The Committee notes that, as indicated by the Government in another section of its report, non-inspector grade personnel who has received training in order to carry out inspections is included in the definition of personnel of the Labour Affairs Bureau carrying out labour inspection duties under section 4 of Administrative Regulation No. 26/2008. Thus, this category of personnel is an integral part of the labour inspection system as understood under Article 2 of the Convention.

Drawing, once again, the Government’s attention to paragraphs 75–78 and 161 of its General Survey of 2006 on labour inspection, the Committee reminds the Government that in accordance with the Convention, the main duties entrusted to labour inspection staff should lead to securing the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work regardless of their status or situation (Articles 2 and 3(1)(a)). Any further duties may be entrusted to them only if they do not interfere with the effective discharge of their primary duties or prejudice in any way the authority and the impartiality which are necessary to inspection staff in their relations with employers and workers (Article 3(2)). It is extremely important that all workers, regardless of their status or situation, consider that labour inspection staff are responsible for protecting their rights as workers and do not participate in or allow their prosecution, a task which should pertain only to the police and judicial authorities. Thus, the Committee is of the view that labour inspection staff should not be vested with any role of assistance to the police during joint operations, as the functions of the two bodies should be clearly distinguishable. The Committee once again urges the Government to ensure that any role for labour inspection personnel in joint operations is limited to inspecting whether employers are in violation of the legal provisions relating to the protection of workers and instituting or recommending legal proceedings against them so that the workers may fully benefit from their rights deriving from the work relationship regardless of their status. The Committee also requests the Government to provide detailed data on the number of undocumented workers who have been compensated for wages and other benefits due to them as a result of joint inspections.

Articles 6 and 10. Numbers and status of labour inspectors. The Government indicates that, under section 4 of Administrative Regulation No. 26/2008, labour inspectors include inspector-grade personnel of the Labour Affairs Bureau, other personnel which is appropriately trained to conduct inspections, and interns. In addition to dealing with violations of the Labour Relations Law, the inspectors are responsible for carrying out the assignments given by the Director of the Labour Affairs Bureau; the other personnel appropriately trained to conduct inspections is responsible for the execution of the assignments given by the Director of Labour Affairs Bureau except the files pertaining to violations of the Labour Relations Law. The Committee requests the Government to specify the numbers of labour inspectors and of non-inspector grade personnel carrying out inspection duties, and to indicate any differences in qualifications, status and conditions of service between the two categories.

Article 7. Adequate training for labour inspectors. The Committee notes that newly nominated labour inspectors received a six-month training in the Legal and Judicial Training Centre followed up by a six-month internship, while the non-inspector grade personnel received three and a half weeks of training on legal and technical basics. In addition, on-the-job training courses were provided on newly promulgated laws. The Committee would be grateful if the Government would provide information on the subjects, attendance, frequency and impact of training activities carried out during the period covered by the next report.

Articles 8 and 10. Gender balance of the labour inspection staff. The Government indicates that the Labour Affairs Bureau welcomes candidates of either sex and follows the principle of fairness and equitability in conducting examinations and selections in order to ensure equal conditions and opportunities for all candidates in accordance with the General Rules for the public administrative personnel of Macao, approved by Decree-Law No. 87/89/M. The Committee requests the Government to specify the duties pertaining to grade 2 inspectors.

Articles 10(a) 21(c) and (d). Extent of the coverage of industrial and commercial workplaces by the labour inspection system. The Committee notes with interest the detailed information provided by the Government on the total number of workplaces liable to labour inspection and the total workforce that they employ. It emphasizes that this information is important because it allows, among other things, for an objective assessment of resources allocated to the labour inspection system in line with Article 10(a) of the Convention. The Committee also notes however, that it has not received an annual report on the labour inspection activities. The last report communicated related to the year 2006. The Committee requests the Government to communicate in its next report the annual labour inspection reports published after 2006.