Demande directe (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Chine - Région administrative spéciale de Macao (Ratification: 1999)

Autre commentaire sur C111

Observation

2008

Demande directe

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Sexual harassment. The Committee notes the Government’s indication that it has not yet enacted specific legislation defining and prohibiting quid pro quo and hostile environment sexual harassment. The Committee also notes that the Government cites sections 157–159 of the Penal Code of 1995, which provide for criminal prosecution for rape, sexual coercion and sexual abuse of a person unable to resist. The Committee considers that addressing sexual harassment only through criminal proceedings is normally not sufficient due to the sensitivity of the issue, the higher burden of proof, and the fact that criminal law does not cover the full range of behaviour that constitutes sexual harassment in employment and occupation (General Survey on fundamental Conventions, 2012, paragraph 792). The Committee further notes the Government’s statement that the Labour Inspection Department of the Labour Affairs Bureau has not received any inquiry or complaint in relation to sexual harassment at the workplace or detected any such case during inspection in the years 2009 and 2010. The Committee recalls that the absence of complaints regarding sexual harassment does not necessarily indicate that this form of sex discrimination does not exist; rather, it is likely to reflect the lack of an appropriate legal framework, the lack of awareness, understanding and recognition of this form of sex discrimination among government officials, and workers and employers and their organizations, as well as the lack of access to or the inadequacy of complaints mechanism and means of redress, or fear of reprisals (General Survey, 2012, paragraph 790). The Committee asks the Government to take more proactive steps with a view to including in legislation provisions defining and explicitly prohibiting sexual harassment in line with its 2002 general observation. It also asks the Government to take concrete measures to raise the awareness of workers and employers and their organizations, of sexual harassment at work. Please also provide information on any cases of sexual harassment detected by the labour inspection services or reported to it, and on the follow-up given to these cases.

Promotion of gender equality. Following the “Report on the present conditions of women in Macao, 2008”, the Committee notes the Government’s indication that the Consultative Commission for Women’s Affairs commissioned a follow-up study in 2010 on the situation of women, which is not yet publicly available. The Committee notes that according to the information of the Statistics and Census Service, men’s labour force participation rate was 78.1 per cent, whereas women’s labour force participation rate was 67.5 per cent in 2011. It also notes the statistical information provided by the Government and the Government’s indication that during the past several years, the number of women in the working population has increased, and that the number of female leaders and female professionals has increased more than that of men. With regard to the measures to promote women’s participation in a wider range of industries and occupations, the Government indicates only that the Labour Affairs Bureau has requested employers to mark down in their recruitment registration that the post involved is open to both men and women. The Committee asks the Government to provide information on the follow-up study on the situation of women conducted by the Consultative Commission for Women’s Affairs, including information on the measures taken to promote women’s participation in a wider range of industries and occupations and in higher level positions. It also asks the Government to provide information on any measures taken, in law and in practice, to assist workers with family responsibilities to reconcile work and family responsibilities and promote their participation in the labour market.

Discrimination on the basis of race, colour and national extraction. The Committee recalls its previous comments concerning section 2(5) of Employment of Non-resident Workers Law No. 21/2009, which gives precedence to resident workers over non-resident workers in respect of hiring and maintaining employment. The Committee notes that section 2(4) of Administrative Regulation No. 13/2010 provides that employment of a minimum number of resident workers may be required as a condition for issuing employment permits for non-resident workers. With regard to the measures to prevent discrimination on the basis of race, colour and national extraction, the Committee notes the Government’s indication that it publishes leaflets, holds teach-in sessions, and translates texts concerning related laws, targeted at both workers and employers. In addition, the Government cites section 85(1)(1) of the Labour Relations Law No. 7/2008, which provides for sanctions for violation of non-discrimination provisions. The Committee also notes the Government’s indication that the Labour Inspection Department has not received any complaint or detected any violations for the period from 2009 to 2010, in relation to discrimination based on race, colour or national extraction. The Committee recalls in this respect that the absence of complaints is not necessarily an indicator of an absence of violations, particularly in the context of non-resident workers, as they may be particularly concerned about the fear of reprisals or victimization, or there may be an absence of practical access to procedures (General Survey, 2012, paragraph 870). The Committee asks the Government to provide information on the practical application of section 2(5) of the Law No. 21/2009 and section 2(4) of the Administrative Regulation No. 13/2010, and to indicate how it is ensured that the implementation of these provisions do not result in indirect discrimination against non-resident workers on the grounds set out in the Convention with respect to hiring and job security. The Committee again asks the Government to provide information on the practical measures envisaged to prevent discrimination against resident and non-resident workers based on race, colour and national extraction in employment and occupation.

Discrimination on the basis of political opinion. The Committee recalls its previous comments and notes the Government’s indication that there have been no judicial decisions regarding section 300(1) and (2) of the Penal Code. The Committee asks the Government to provide information on the practical application of section 300(1) and (2) of the Penal Code, including information on the number of persons convicted under these provisions and the sentences imposed.

Special measures of protection. The Committee notes the Government’s indication that the draft legislation entitled the “Occupational Safety and Health Charter” has not yet been enacted, and that the prohibition of women’s employment in highly hazardous work during pregnancy or within three months after childbirth fully satisfy section 10(2) of the International Covenant on Economic, Social and Cultural Rights, which provides that special protection should be accorded to mothers during a reasonable period before and after childbirth. The Committee trusts that the prohibition of women’s employment in highly hazardous work in the Occupational Safety and Health Charter will be limited to maternity protection in the strict sense, and asks the Government to provide a copy of the text of the new legislation once it is enacted.

Enforcement. The Committee notes the Government’s indication that there was one case concerning equality in recruitment for local and foreign employees, in which the court did not find any violation of the principle of equality provided for under section 6(2) of the Labour Relations Law No. 7/2008. The Committee recalls its previous comments concerning guidance for labour inspectors and judges on addressing cases of discrimination. The Committee notes the Government’s indication that because judges only follow the law in making decisions, no guidance is provided for judges in handling cases of discrimination. The Committee considers that judicial independence would not be hampered by providing training for judges in order to better understand the principles of the Convention. With regard to the labour inspection, the Committee notes the Government’s indication that from 2009 to 2011, the Labour Affairs Bureau received one complaint involving gender discrimination, but the case was withdrawn by the complainant. The Labour Inspection Department intends to provide training concerning the Convention for the labour inspectors, but the relevant working guide has not yet been prepared. The Committee asks the Government to provide information on the steps taken to raise awareness of workers, employers and their organizations of the procedures available to address cases of discrimination. The Committee encourages the Government to organize awareness-raising activities regarding equality and non-discrimination for labour inspectors and judges, and requests information on any further steps taken in this regard. Please also continue to provide information on any relevant cases dealt with by the labour inspectors or the courts.