By Helena Kok
Partner, MdME
[email protected]
Unionization of workers is very common in modern society. Some studies found that labour unions play an important role in economy because they can promote harmonious discussion between employees and employers, improve working conditions, enhance employees’ well-being and productivity, and thereby positively increase overall economic sufficiency in the society.
Whether you agree with this or not, Macau has just taken a step forward, in implementing Macau citizens’ freedom to association.
Declared by ILO (The International Labour Organization) as one of the Fundamental Principles and Rights at Work, protection for workers’ right to association had been the bone of contention in the Macau Legislative Assembly in the last 20 years. Last week, the very first Law of Labour Unions, under Law no. 6/2024 (the “Law”), was finally passed in that forum. It regulates the formation, activities, competences and obligations of Labour Unions in Macau.
The Law shall become fully effective on 31 March 2025, while some provisions of the Law on transitional arrangements shall come into effect on 1 January 2025. Here are some key takeaways of the Law:
Membership
Under the Law, members of Labour Union must be over 16 years old and be employees of employers based in Macau. Exception to the latter shall be granted by the Labour Department through a special authorization.
The minimum number of members for setting up a Labour Union is 7.
Employees who do not satisfy this requirement after joining a Labour Union may remain a member, but do not have voting rights and cannot take up any role in the governance body.
Competences
Under the Law, Labour Unions shall have the following competences:
- Representing their members in handling and negotiating in labour disputes. Such representation power shall cease upon request by the member.
- Expressing opinions to employers on behalf of their members in regard to workplace health and safety issues.
- Expressing opinions in labour related legislations;
- Providing aiding and promoting measures for employment;
- Organizing professional trainings;
- Providing social services; and
- Any other competences granted by the laws.
Association with labour organizations outside of Macau
In upholding the right to freedom of association under Macau Basic Law, Labour Unions may associate with organizations based outside of Macau. However, when such an organization does not pertain to labour matters, the association is subject to prior approval from the Chief Executive.
Limitations of Labour Unions activities
Labour Unions, in carrying out its functions and conducting their activities, may not pose threats to the social order and public health; nor affect the basic needs of the society guaranteed by public services, other indispensable and urgent services
Guarantees
The Law expressly prohibits any person from restricting engagement with/ or disengagement from Labour Unions or participation in activities organized by Labour Unions. Particularly, no employer should dismiss, demote, reduce salary of, employees, due to their relationship with Labour Unions. Further, no employer should hire or benefit job candidates, on the condition of their status in Labour Unions.
Breach of these prohibitions is punishable with a fine between MOP20,000 and MOP50,000, per person involved in a case.
On top of the justifiable absence already set out in Macau Labour Relations Law, the Law provides for one more justifiable absence, applicable to employees who belong to the governance body of a Labour Union, if such absence from work is due to the employee’s leadership role in a Labour Union. However, the employee may not apply for this justified absence more than 1 day per month; or 6 days per year. Employee must provide a minimum of 3 day prior notice to employer, aside from evidence of this justification.
Federation of Labour Unions
Having taken into consideration the existing structure and composition of associations in Macau, the Law provides for the possibility of forming “Federation of Labour Unions,” with members who are registered Labour Unions or Federations of Labour Unions. The minimum number of members required for setting up this kind of Federations is 2.
As special competence granted to Federation of Labour Unions, representative of Federation of Labour Unions shall be appointed by the Chief Executive to participate in consultation meetings and discussion on public labour policies.
Legal standing and transitional provisions
Both Labour Unions and Federation of Labour Unions obtain their legal standing upon registration with Macau Labour Department.
Existing associations incorporated before the enactment of the Law, that is, those incorporated under Law no. 2/99/M, may apply for conversion into Labour Union or Federation of Labour Unions under the Law, upon passing of resolutions by the general assembly and meeting the respective requirements. The application must be filed with Labour Department from 1 January 2025 to 31 December 2027. They may also choose to remain as such without losing their legal standing as an association.
What is missing from the Law?
While some are cheering for the victory; some just realized that they had counted the chickens too soon. Apparently, some chickens are missing. Where is the right to collective bargaining? And where is the right to strike? By looking at the first consultation paper of the Law, one would notice that collective bargaining was nicely placed under consultation; whereas the right to strike was a blatant “no show”.
While I agree that the right to strike is such a socially sensitive topic that deserves personalized VIP treatment, the right to collective bargaining could have been properly dealt with in the Law. The so-called competence to represent “individual” employee, in “individual” labour claim, is a far cry from “collective” bargaining. People like me who are familiar with the due process would not be surprised that the Law does not empower Labour Unions to make decisions on employees claims or lay down penalties for breach of labour laws. If Labour Department continues to be “the” authority and many times, the mediator between the two parties in a labour dispute, the “competence” to represent individual employees granted to Labour Unions means that employers now have to deal with one more layer of middlemen. But the status quo is that this representation task can be performed by the existing labour associations (these can even represent collective interests in courts under the Labour Procedure Code!); or employment lawyers; or even anyone with a valid power of attorney. I would like to believe that Labour Unions have edges over the status quo, in handling or negotiating labour related disputes and issues on behalf of – individual – employees, Otherwise, this competence, to me, is more an assignment given to Labour Unions in easing the workload of Labour Department, who has been doing very well the work!
Back to the basics, the Law is said to be the outcome of social consensus, reached by way of public consultation followed by in depth discussions among lawmakers, government, and multiple functional committees representing a broad spectrum of social interests – fruits of a diligent process that dates back to 2021.
If the representativeness of legislative machinery should not come into question, my only explanation to the mystery of missing chickens is that our society can only swallow that much in one bite. Ending a two-decade-long agreement to disagree is already a significant achievement. Let us slow down, enjoy this achievement, and see what the future brings.
