More than 20 years after the first proposal was made to the legislative assembly, and after successive rejections by the local legislative body, a consultation process has been put in place to enact a Labour Union Law. This consultation period will last until 14 December 2021.
With the aim of promoting harmonious relations between employers and employees, the accompanying consultation document seems to bring a wide range of novelties to the labour relations space in Macau.
According to the proposal currently under consultation, the new law shall respect the Basic Law of the Macau Special Administrative Region by fostering harmonious relations between employers and employees, and welcoming the opinions of the various social sectors in Macau, without ignoring the "one country, two systems" principle.
The consultation document sets out the objectives and guiding principles of union associations. According to the document, union associations should strive to protect labour rights and interests, considering the principle of freedom of association (protected by the Basic Law), the principle of equality among unionised workers and the principle of legality of the activities pursued by trade union associations.
Regarding the scope of application, the document takes into account analogous regimes in countries and regions such as Taiwan, Singapore, Malaysia and Hong Kong's special administrative region in China. It also takes into account article 9 of the International Labour Organization's Convention No. 87 (concerning freedom of association and the protection of the right to organise, such as on freedom of association), article 5 of the International Labour Organization's Convention No. 98 (concerning the right to organise and collective bargaining) and article 8 of the International Covenant on Economic, Social and Cultural Rights – all applicable in Macau. In this regard, it is understood that the principle of freedom of association should be tempered by the need to protect state security, public order and the rights and freedoms of others.
It is on this basis that the consultation document states that the law shall establish restrictions to the freedom of union association for some sectors of activity, as it understands that these provide public and security functions of the state, so they should not pursue union activities against it. Specifically, the proposal addresses the case of public employees, including agents of public security forces.
The document also states that considering the special duties to be performed by the agents of the security forces, who are responsible for maintaining social and public order in society and for guaranteeing the security of people and goods, this professional class should see its freedom of union association restricted. However, the consultation document leaves the door open for the creation of union organisations specifically to this professional class.
Similarly, since public employees provide services to the general population, they should have, according to the government, a differentiated treatment, so as to guarantee the balance between the public interest and the exercise of union rights by these workers. For the same reason, restrictions are necessary with respect to employees who provide services in sectors of public interest (including water supply, electricity, public transport and communication infrastructures, among others), and for employees in the health sector and other sectors where continuous operation is essential.
With regard to collective bargaining – which includes the phase of discussion and communication between the trade union association and an employer or employers' association on the rights and interests of employees and employers – this law proposal presents a major innovation. The proposal endeavours to find agreement on the possibility of the union association representing the employee in collective bargaining, and, for this purpose, to create a standardised negotiation mechanism in order to promote dialogue between employer and employee.
Still regarding collective bargaining, given that Macau labour relations are governed by the Labour Relations Law, which establishes the minimum standards to be observed in relations between employee and employer, the consultation document states that all aspects may be discussed in collective bargaining, while respecting the minimum standards established by law.
Some legislative assembly members already mentioned that they believe the consultation document and the expected law provide less than expected, because they exclude important professional classes. However, the assembly members also admit that it is preferable to establish a legal framework for trade unions on these terms rather than to continue without one.
This is an important landmark in Macau and completes the provision of the Basic Law that opened the way to unions.
Although this may be less than expected for some sectors, this is an important step that will surely contribute to fostering harmonious relations between employers and employees.
Once the consultation period ends, there will still be a process to be followed before the proposal can be submitted to the legislative assembly, which will then discuss the content. In this sense, it is safe to expect that the new Union Law will be enacted during the course of 2022.
For further information on this topic please contact Helena Nazaré Valente at Rato, Ling, Lei & Cortés Advogados by telephone (+853 2856 2322) or email ([email protected]). The Rato, Ling, Lei & Cortés Advogados website can be accessed at www.lektou.com.