Observation (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Chine - Région administrative spéciale de Macao (Ratification: 1999)

Autre commentaire sur C098

Observation

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The Committee notes the observations of the representative organizations of workers communicated with the Government’s report while observing that the Government does not provide the names of these organizations. The Committee notes the Government’s replies to previous observations from the International Trade Union Confederation (ITUC).

Legislative developments. The Committee previously 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 Trade Union Law, which would give effect to these rights, had been pending adoption for fifteen years since 2005.

The Committee notes the Government’s indication that, subsequent to a public consultation undertaken in 2021, a draft law was passed in January 2023 by the Legislative Council after social partner consultations at the Standing Committee for Social Coordination. The Government indicates that the draft Trade Union Law is currently undergoing detailed review. The Committee notes with regret the Government’s indications that owing to a lack of societal consensus during the public consultation, the draft law, as it is currently, does not accommodate the right to collective bargaining. Recalling that the legislation of the Trade Union Law has been a protracted process which has been ongoing for 18 years since 2005, the Committee urges the Government to take the necessary measures, whether through the Trade Union Law currently under review or otherwise, to ensure that collective bargaining rights as enshrined in the Convention are made explicitly available to all workers and employers without further delay. The Committee expects that the Government will provide, in its next report, specific information on the measures taken to ensure the adoption of a legislation that guarantees the right of collective bargaining to all workers under the Convention. The Committee recalls that the Government may avail itself of the technical assistance of the Office in this respect.

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. On several previous occasions, the Committee had 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 patacas (MOP) which is equivalent to US$2,500–6,200). 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 takes note of the Government’s indication that the draft Trade Union law would ensure the right of trade unions to organize and carry out trade union activities. The Committee notes with regret that the Government reiterates its previous position on the issue that section 10(1) of the Labour Relations Law is applied for all illegal acts violating workers’ rights, including any act by an employer to treat adversely or deter an employee in the exercise of their rights. The Committee observes that the penalty amounts in the provision remain constant and therefore, still appear to be insufficiently dissuasive, particularly for large enterprises. In light of the above, the Committee firmly requests the Government 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, to ensure that this provision is not used for anti-union purposes. The Committee is bound to note that the Government has not elaborated on any measures taken to address the concerns raised by the ITUC in 2014. The Committee observes, based on the Government’s indications in its current report and its supplementary report, that the Labour Affairs Bureau has received no complaints of anti-union dismissals between June 2019 and May 2023. Recalling once again that anti-union acts may not, in practice, always result in the filing of complaints to the competent authorities, the Committee firmly requests the Government to take the necessary measures, including of a legislative nature, to ensure that section 70 of the Labour Relations Law on the termination of employment contracts is not used for anti-union purposes.

Article 2. Adequate protection against acts of interference. In its previous comments, the Committee had 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. The Committee notes the Government’s indications that the Basic Law of the Macau SAR and the Regulation on the Right to Association provide adequate protection against acts of interference. The Government indicates that the draft Trade Union Law, which is currently under review, prohibits persons from obstructing or restricting the trade union rights of others. The Committee expects that the Trade Union Law will include provisions that align with Article 2 of the Convention and specifically and adequately protect workers’ and employers’ organizations against all acts of interference, including by providing sufficiently dissuasive sanctions accompanied by rapid and effective procedures. The Committee requests the Government to provide information in this respect.

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. The Committee notes the Government’s indication that between June 2019 and May 2023, the Labour Affairs Bureau did not receive any complaints concerning any violation of trade union rights of employees. The Government adds that there were no Court judgements dealing with cases of anti-union discrimination and interference during this period. The Committee requests the Government to continue to provide statistical information on the functioning, in practice, of the Labour Affairs Bureau, the Labour Tribunal and any Courts 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 did not contain any provisions against anti-union discrimination and interference and that the Government did not indicate any other specific provisions to this effect. The Committee notes the Government’s reiteration that the protection of civil servants against discrimination or interference in the exercise of their trade union rights is guaranteed. While noting the information provided by the Government on the protections afforded to ensure the participation of public servants in staff associations and other trade-union-like organizations, the Committee observes once again that it does not point to 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 once again firmly requests the Government to take the necessary measures, including of a legislative nature, to explicitly prohibit acts of anti-union discrimination and interference and grant all 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 in the 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. The Committee notes with regret the Government’s indications that the draft Trade Union Law, as it has been drafted currently, does not ensure the right to collective bargaining. The Committee further notes, with respect to collective bargaining rights in the private sector, that the Government reiterates 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 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 further indicates that section 27 of the Basic Law and the Regulation on the Right to Association is currently implemented to ensure that all employees enjoy their right to freedom of association, assembly, organization, and demonstration. While taking due note of the information provided by the Government, the Committee observes that there have been no measures taken to incorporate into law the right to collective bargaining for employees in the private sector and public servants not engaged in the administration of the state. Recalling once again that the Convention promotes 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 once again firmly requests the Government 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 Trade Union Law or any other legislation, and to provide information on any developments in this regard.

Collective bargaining in practice. The Committee once again notes that the Government has not conducted any relevant statistical analysis on collective agreements concluded. The Committee once again requests the Government 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.

The Committee recalls that the Government may avail itself of the technical assistance of the Office in order to address the different points raised in this observation.