2010 Annual Survey of violations of trade union rights - Macau SAR (China)
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2010|
|Cite as||International Trade Union Confederation, 2010 Annual Survey of violations of trade union rights - Macau SAR (China), 9 June 2010, available at: http://www.refworld.org/docid/4c4fec6a28.html [accessed 23 February 2017]|
ILO Core Conventions Ratified:
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 government to protect local workers. The law does not adequately protect all workers, and the right to collective bargaining is not secured.
Trade union rights in law
Problematic areas remain in the legal framework for trade unions despite the adoption of a new labour relations law in 2009. Freedom of association is guaranteed under local law, and the law prohibits the dismissal of workers on grounds of their membership of a union or their union activities. However, the new labour relations law fails to provide adequate protection for part-time workers and migrant workers whilst providing excessive flexibility to employers. The Guidelines on the Professional Ethics and Conduct of Public Servants also appear to require civil servants to seek prior permission from managers before joining a trade union. Furthermore, 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.
Trade union rights in practice and violations in 2009
Background: Since the start of the global financial crisis, the casino construction boom has slowed and many employers have laid off workers, in many cases with little or no compensation. National security laws passed at the end of 2008 could lead to the restriction of union activity on grounds of subversion, sedition or succession. A new chief executive was sworn in in December: Fernando Chui Sai On was the sole candidate for the post and was "voted" in by 282 of the 300-member election committee nominated predominately for their pro-Beijing affiliation. Throughout 2009 there were increasing protests over pay and working conditions, illegal imported labour and the passing of the Article 23 National Security legislation.
Lack of union law has crucial impact: A proposed trade union law drafted by unionist and legislator Jose Pereira Coutinho failed to gain support in 2009 for the third time. The outcome was not surprising given the lack of independent legislators in the legislative body. Still, the failure of Macau to have a law governing trade unions has very negative effects for workers, who are often unaware of the role of trade unions and unable to get information at their workplace. Most workers with disputes have to present complaints to the Labour Bureau or attempt to speak to the employer alone. Both the Bureau and the workers have little negotiating power with employers, who generally ignore the complaints and complainants. In some cases, the Labour Bureau will try to deter complainants.
China's influence over union activity: 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 minimisation 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 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 in registering organisations and trade unions: In practice, many labour groups and unions find it difficult to register as organisations. Informal worker groups and attempts to form labour groups are not allowed, recognised or permitted to exist. In many cases, organisers 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 Macau 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 victimised and discriminated against for their union activities. The use of temporary contracts has been increasing, making workers even more vulnerable to abuse and intimidation.
Limits on organising: Certain groups of workers still face problems when it comes to organising. In 2006, the ILO called on the government to ensure that domestic workers have full rights to organise. It was hoped that the new law amending labour legislation would address these issues, however it failed to provide universal protection of the right to freedom of association by again excluding migrants and civil servants.
Migrant workers denied rights: There were an estimated 89,300 non-resident workers in November 2009, a decrease from the preceding year. Over half are from mainland China. Migrant workers are denied the most basic forms of protection and have no right to collective bargaining and no effective legal recourse in the case of unfair dismissal. Most generally earn less than half the wage of local workers employed at the same job, and contracts are between labour recruitment agents and the employer, rather than directly between the employee and his or her boss. According to independent legislators and migrants' group, the new law on the Employment of Foreign Employees from October 2009 remains discriminatory and is too vague. The bill imposes a levy on employers of non-resident workers, gives a six month re-entry ban on workers who terminate their contracts and prohibits the transfer to other job categories.
Illegal workers and trafficking: The Macau Labourer and People's Spirit Association has estimated there are some 30,000 undocumented migrants from Southeast Asia and mainland China in the territory. After high profile public demonstrations in 2007 against the use of illegal and low-paid imported labour, there has been a reported slowdown 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 criminalise employers using illegal workers with maximum punishment of 3 years' imprisonment.
According to the Mission for Migrant Workers, the Macau authorities are ignoring the problem of illegal recruitment. The MFMW handled nearly 50 foreign domestic workers who were victims of illegal recruitment to Macau in the fourth quarter of 2009.
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. The procedure to get wage arrears in front of the Labour Bureau is lengthy and cumbersome. According to the Civil Servants Union, a simple labour dispute could take one year to process by the Bureau followed by another two years in court. The majority of migrant workers cannot afford to wait this long, and many leave within this period.
Blacklisting unionists and denial of re-entry to Macau: Macau is believed to keep a blacklist of local workers who have supported local strikes and regularly denies entry to "trouble-makers". In March five Hong Kong legislators including Lee Cheuk Yan, General Secretary of the Hong Kong Confederation of Trade Unions, were denied entry. Lee Cheuk Yan reported that he had recently been denied entry three times.