2008 Annual Survey of violations of trade union rights - Macau SAR (China)
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Macau SAR (China), 20 November 2008, available at: http://www.refworld.org/docid/4c52ca8028.html [accessed 25 November 2015]|
ILO Core Conventions Ratified: –
Legislation is not favourable to trade unions and workers wishing to protect their rights. Freedom of association is guaranteed in law but does not extend to public servants or migrant workers. Collective bargaining is not guaranteed. Labour unrest is growing in the wake of economic changes.
Trade union rights in law
Freedom of association: Freedom of association is guaranteed under section 4 of Law No. 2/99/M. Trade unions may be formed and anyone can join one, but many labour groups and unions find it difficult to register as organisations. Section 45 of Decree-Law No. 24/89/M prohibits the dismissal of workers on the grounds of their membership of a trade union or their trade union activities. Section 347 of the Penal Code is ostensibly a deterrent against public authorities interfering in workers' freedom of association.
However, new guidelines developed in 2006 by the Commission Against Corruption (CCAC), require that civil servants must obtain approval from their managers before joining associations or becoming leading figures in labour associations. This is in violation of the Macau SAR Basic Law. Secretary for Administration and Justice, Florinda Chan, accepted criticism from pro-democracy legislators and said that supplementary guidelines would be published to clarify the concerning stipulations. No further information is available.
No guarantee of collective bargaining: Section 6 of Decree-Law No.24/89/M provides that agreements concluded between employers and workers shall be valid. However, it does not explicitly state that such agreements should be concluded or that they should involve collective bargaining.
Public servants excluded: Certain clauses such as sections 3(2) and 3(3) of Decree-Law No. 24/89/M specifically exclude public servants and migrant workers from the protection of the labour law.
Trade union law under discussion: A draft trade union law proposed by the Civil Servants Union was again voted down in the Macau SAR legislature, and the government has not provided any alternative timetable for the possible legislation. Without a proper trade union law, union members are not protected from discrimination, and unions have no official role despite the rising numbers of labour disputes.
Outdated labour laws: The current labour law (24/89/M) dates from 1989 and is currently outdated. After years of lobbying from unions and other groups, the government put forward a draft Labour Relations Bill to the Legislative Assembly in May 2007. The bill was approved in the legislative assembly and put for public consultation in June and July 2007. The final labour law has not yet been officially issued at time of writing.
Trade union rights in practice and Violations in 2007
Many unions tend to resemble local traditional neighbourhood associations, promoting social and cultural activities rather than issues relating to the workplace. In recent years, especially after the May Day rally in 2007, more small unions and groups from civil society (registered or not) are becoming more vocal.
Employers' power: It is common practice in Macao for workers not to have formal employment contracts with their employers. The power of employers to change unilaterally the wages and working conditions of employees or to terminate their employment (which is equivalent to dismissal) is therefore unchecked. In the context of this excessive employer power and with no legal-institutional framework for collective bargaining or even employment contracts, workers are easily victimised and discriminated against for their union activities. The use of temporary contracts has reportedly been increasing, making workers even more vulnerable to abuse and intimidation.
No protection for strikers: Whilst the right to strike is supposed to be protected by law, there is no legal protection against retribution by employers for involvement in strike action. Striking workers may therefore be dismissed during or after industrial action, regardless of the negotiated outcome. Strike leaders and union activists also report that they are blacklisted by the local business sector.
China's influence: It is widely believed that the central government of the People's Republic of China has a strong influence over local trade union activities, including the direct selection of the leadership of the largest private sector union, the Federation of Trade Unions. Nearly all of the six main private sector unions belong to this pro-Beijing federation. This has undermined the independence of trade unions, since support for central government policies, such as the minimization of workplace disruption, overrides the protection of the rights and interests of trade union members. There have been reports of intimidation of those who do speak out against the Beijing government both politically and in terms of labour rights. Civil society is weak but growing in Macao. The growing influence of the central government, combined with increasing prosperity for many residents, will further reduce independent worker movements.
Migrant workers: The number of migrant workers reached 86,510 in January 2008, nearly 20,000 more than in January 2007. More than half of the migrant workers are from mainland China. Migrant workers are denied the most basic forms of protection. Although migrant workers usually have employment contracts, they have no right to collective bargaining and no effective legal recourse in the case of unfair dismissal. While they are entitled to compensation in case of dismissal before the termination of their contracts, it is common practice for migrant workers to be issued with short-term contracts under which the nonrenewal of the contract amounts to dismissal. The use of illegal (and hence unprotected) labour is also a problem for Macao authorities who regularly launch crackdowns on the use of illegally imported workers, from southeast Asia and mainland China. They mainly work in construction, small & medium enterprises and as domestic helpers. It is claimed that the high percentage of foreign labour is eroding the bargaining power of local residents to improve working conditions and increase wages. Many unions and other groups have been trying to ensure that the use of imported labour does not unduly affect wage rates for local workers and that migrants are covered by union bodies. After high profile public demonstrations during May Day 2007 against the use of illegal and low paid imported labour, there has reportedly been a slow down in the number of imported workers from China but a faster growth in migrant workers from Hong Kong and South East Asia.
Excessive force over workers' protests: Protestors at the May Day rally in 2007 complained of police interference and harassment, when an estimated 10,000 protestors (police say 2,400) marched in protest at current living conditions and labour rights. Corruption was also a central theme, linked to rising house prices and a shortage of affordable housing in the wake of a huge embezzlement scandal involving the former secretary for transport and public works Ao Man-long. The rally saw several scuffles and the accidental shooting of a motorcyclist by police.
Increasing worker protests: On 1 October (the people's Republic of China's National Day), two independent labour unions, the Macau Workers' Union and the Casino and Construction Workers' Union organized simultaneous protests starting from the northern part of the Macau peninsula, a traditionally poor industrial area of Macau. The main demands were to control the use of illegal workers, end corruption and establish a quota for imported labourers.
Wages arrears rising: With more foreign investment in the SAR, the increasing use of sub-contractors and the use of less-protected migrant workers, wages arrears has become a common problem, especially in the construction sector. However, the government refused to take a more active role in combating the problem. In their proposed labour relations bill, the criminalization of wages arrears was raised by unions (including the pro-Beijing FTU), but the government refused to include such clauses. In most wage arrears cases, workers stage unplanned protests to claim back pay rather than seek help from the labour bureau, because the procedure is lengthy and cumbersome. According to the Civil Servants Union, a simple labour dispute could take one year to process by the labour bureau followed by another two years in court. The majority of migrant workers cannot afford this timeframe, and many leave within this period.
Denial of re-entry to Macau: There have been several reports about Hong Kong workers, employed in Macau, who openly supported the strike by Hong Kong metal workers in August 2007 (see the Hong Kong report in this Survey) and who were later denied the right to re-enter Macau for work. Macau reportedly has a black list of local workers who have supported local strikes and has denied entry to foreign "trouble-makers", including Hong Kong's prominent legislator and social activist Leung Kwok-hung as well as the legislator and general secretary of the Hong Kong Confederation of Trade Unions, Lee Cheuk Yan.