Union law – public consultation – Commentary
More than 20 years after the first proposal made to the Legislative Assembly, and after successive rejections by the local legislature, a consultation process has been put in place to enact a law on trade unions. This consultation period will last until December 14, 2021.
With the aim of promoting harmonious relations between employers and employees, the accompanying consultation document appears to bring a wide range of novelties to the labor relations space in Macau.
According to the proposal currently in consultation, the new law will respect the Basic Law of the Macao Special Administrative Region by promoting harmonious relations between employers and employees, and welcoming the opinions of different social sectors of Macao, without ignoring the “one country, principle of the two systems “.
The consultation document sets out the objectives and guiding principles of union associations. According to the document, trade union associations should strive to protect the rights and interests of workers, taking into account the principle of freedom of association (protected by the Basic Law), the principle of equality between unionized workers and the principle legality of activities carried out by trade unions. associations.
Regarding scope, the document takes into account similar regimes in countries and regions such as Taiwan, Singapore, Malaysia and the Hong Kong Special Administrative Region in China. It also takes into account Article 9 of Convention No. 87 of the International Labor Organization (concerning freedom of association and the protection of the right to organize, such as freedom of association), Article 5 of the International Labor Organization Convention 98 (Concerning the Right to Organize and Collective Bargaining) and Article 8 of the International Covenant on Economic, Social and Cultural Rights – all applicable in Macao. In this regard, it is understood that the principle of freedom of association must 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 indicates that the law will establish restrictions on the freedom of trade union association for certain sectors of activity, since it understands that these perform public functions and state security. , so they should not carry out union activities against it. More specifically, the proposal addresses the case of public employees, including agents of the public security forces.
The document also specifies that in view of the particular functions that must be fulfilled by the agents of the security forces, who are responsible for maintaining social and public order in society and ensuring the safety of persons and goods, this professional class should see his freedom of association association restricted. However, the consultation document leaves the door open to the creation of trade union organizations specifically for this professional class.
Likewise, given that public officials provide services to the general population, according to the Government, they should benefit from differentiated treatment, in order to guarantee the balance between the public interest and the exercise of trade union rights. by these workers. For the same reason, restrictions are necessary with regard to employees providing services in sectors of public interest (including water supply, electricity, public transport and communication infrastructure, among others. ), and for employees in the healthcare sector and other sectors where continuous functioning is essential.
With regard to collective bargaining – which includes the phase of discussion and communication between the trade union association and an employer or an employers’ association on the rights and interests of employees and employers – this bill presents a major innovation. The proposal seeks to find an agreement on the possibility of the trade union association representing the employee in collective bargaining and, to this end, to create a standardized negotiation mechanism in order to promote dialogue between employer and employee.
Also with regard to collective bargaining, given that labor relations in Macao are governed by the Labor Relations Act, which establishes the minimum standards to be observed in relations between the employee and the employer, the document consultation specifies that all aspects can be discussed within the framework of collective bargaining, while respecting the minimum standards set by law.
Some members of the Legislative Assembly have already mentioned that they believe that the consultation document and the expected law bring less than expected, as they exclude important occupational classes. However, members of the assembly also admit that it is better to establish a legal framework for unions on these terms than to continue without.
This is an important milestone in Macau that complements the provision in the Basic Law that paved the way for unions.
Although this may be less than expected for some sectors, it is an important step that will surely help foster harmonious relations between employers and employees.
Once the consultation period is over, there will still be a process to follow before the proposal can go to the Legislature, which will then discuss its content. In this sense, we can expect that the new Union law will be promulgated in the year 2022.
For more information on this topic, please contact Helena Nazaré Valente at Rato, Ling, Lei & Cortés Advogados by phone (+853 2856 2322) or by e-mail ([email protected]). The Rato, Ling, Lei & Cortés Advogados website can be accessed at www.lektou.com.