2009 Annual Survey of violations of trade union rights - Macau SAR (China)
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Macau SAR (China), 11 June 2009, available at: http://www.refworld.org/docid/4c52cadb28.html [accessed 20 January 2018]|
ILO Core Conventions Ratified: –
Freedom of association is guaranteed in law but with many restrictions and it 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 local law. Trade unions may be formed and anyone can join one. The dismissal of workers on grounds of their membership of a trade union or their trade union activities is prohibited by law, and there are clauses in the criminal law that prohibit the interference of public authorities in workers' freedom of association.
Civil servants excluded: Certain clauses specifically exclude civil servants and migrant workers from the protection of the labour law.
Introduction of national security laws: In October 2008, the Macau SAR government introduced draft legislation on national security under Article 23 of the Basic Law for public consultation. The draft was widely criticised by local and international groups, including the ITUC. The consultation period was set at only 40 days, which was inadequate in view of the importance of the legislation. After a short period of consultation, the legislation was only slightly revised by the government and passed in principle by the Legislative Council in December despite the opposition of the minority pro-democracy legislators. The legislation introduces mainland notions of national security into Macau and outlines criminal sanctions for the crimes of subversion, succession, sedition and treason. If widely applied this could be used against labour activists and others attempting to promote workers' and trade union rights. It could also impact trade union activities, especially industrial action, strikes, assemblies or public marches or those linked to foreign trade union organisations.
No guarantee of collective bargaining: While Macau legislation provides that agreements concluded between employers and workers shall be valid, it does not explicitly state that such agreements should be concluded or that they should involve collective bargaining.
New labour relations law introduced: On 5 August 2008, a long awaited labour relations law was passed, which will come into effect in January 2009. The law, developed by a standing committee primarily made up of officials and businesses, fails to provide adequate protection for part-time workers and migrant workers whilst providing excessive flexibility to employers. Some groups believe the law is a big step backward for workers' rights. Certain clauses in the new law specifically exclude civil servants, migrant workers, apprentices and employees under vocational training contracts from the protection of the labour relations law. In addition, there are guidelines requiring public servants to seek prior permission of managers before joining a trade union.
Trade union rights in practice and violations in 2008
Background: Given the increasing economic slowdown in Macau, independent labour unions such as the Macau Workers' Union and the Casino and Construction Workers' Union have urged the Macau SAR government to protect the employment of local workers. They estimated that by November 2008, some 70 percent of local Macau construction workers had been suspended from work without pay. The unions have been receiving increasing complaints from local construction workers about employers who have laid off locals and instead hired migrants at lower wages or asked local workers to accept low wages. During 2008, unions organised four strikes at construction sites including protests blocking off the site in order to claim unpaid wages and protest against lack of paid work for workers paid on daily rates.
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.
Civil society is weak but has been growing in Macao in recent years. Following the May Day rally in 2007 there has been a growth of smaller and more vocal trade unions, alongside a growth in civil society associations.
Difficulties to register organisations: In practice, many labour groups and unions find it difficult to register as organisations. Political parties are difficult to form as dual membership is not allowed and informal worker groups and attempts to form labour groups are not allowed, recognised or permitted to exist. In many cases organizers are asked to submit the names of potential members before registration however due to well grounded fears of retribution and blacklisting many supporters are unwilling to provide full details.
Employers' power: It is common practice in Macao for workers not to have formal employment contracts with their employers. The power of employers to unilaterally change the wages and working conditions of employees or to terminate employment (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 victimized and discriminated against for their union activities. The use of temporary contracts has 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.
Migrant workers: The number of registered migrant workers reached 95,574 in November 2008, nearly 10,000 more than in December 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 as a result of dismissal before the termination of their contracts, it is common practice for migrant workers to be issued with short-term contracts: resulting in failure to be compensated.
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. The high percentage of foreign labour is eroding the bargaining power of local residents to improve working conditions and increase wages. With the increased number of construction projects (Casinos and hotels primarily) there has been a relaxation of regulations. Some 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 rights.
After high profile public demonstrations in 2007 against the use of illegal and low paid imported labour, there has been a reported slow down in the number of imported workers from China, but a faster growth in migrant workers from Hong Kong and South East Asia who generally receive higher wages than those from mainland China. In October 2008, new regulations criminalize employers using illegal workers with maximum punishment of 3 years' imprisonment.
In September, 13 migrant workers of the Macau Galaxy Entertainment reported they were threatened after they tried to claim missing wages for the final month of their contract which had been terminated. Workers complained to the union which was eventually successful in obtaining compensation for the workers who had had to return to mainland China.
Increasing worker protests: On 1 May, 1 July and 1 October (the People's Republic of China's National Day), the independent labour unions, the Macau Workers' Union and the Casino and Construction Workers' Union organised simultaneous protests. The main demands were to control the use of illegal workers, end corruption and establish a quota for imported labourers. In addition there have been several protests against the draft legislation on Article 23 since the start of consultations in October.
Wage 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 and refused to include suggestions to criminalize non payment of wages in the new labour law. 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.
Excessive force against peace demonstrations: In July, 20 people, including legislators and independent unionists went on a peaceful Global Human rights torch demonstration. The torch relay was forcibly dispersed by police. Policemen sprayed the torch and arrested five protesters while several hundred policemen and plainclothesmen monitored and filmed protestors. Legislators and unionists later complained against the excessive use of force against peaceful and legal demonstrations. The current legislation on the Regulations for demonstrations and public meetings is currently under review by the government. In one positive development, on 31 December the Macau government passed a clause allowing groups to make independent appeals against refusal of a proposed demonstration.
Denial of re-entry to Macau: Macau is believed to keep a black list of local workers who have supported local strikes and has denied entry to "trouble-makers", including the HK legislator and General Secretary of the HK Confederation of Trade Unions.