Contributed By Rato, Ling, Lei & Cortés - Advogados
Workers in the Macau Special Administrative Region (“Macau” or “MSAR”) can be divided into resident and non-resident workers under the law, according to their working permit.
Macau residents possess residency status and therefore their permanence in Macau does not depend on a set employment, whereas non-resident workers’ permanence in Macau is subject to a labour authorisation that, in turn, is dependent on a labour contract. To this end, these prospective employees are not permitted to work unless a proper work permit has been obtained – employers must therefore request a prior hiring approval (denominated “quota”) to the Macau Labour Affairs Bureau.
The manpower provided by non-resident workers is, according to the law, supplemental, provisional, secondary, sustainable and subject to prior approval. The employers are obliged to give priority to resident workers and hire non-resident workers only when faced with a lack of local manpower.
Law 7/2008 ("Macau Labour Relations Law") generally establishes the legal regime of labour relations and the core regulations of employment contracts, general principles applicable to employment relationships, duties and obligations of the employer and employee, probation period, employment contract requirements, employment contracts for a fixed period, working hours, overtime, weekly time off, annual leave and eventual compensations in the event of contract termination without or with just cause.
Non-resident workers’ employment relation is bound by strict regulations included in the Law for the Employment of Non-resident Workers – ie, Law 21/2009, as amended by Law 4/2013 (“Law 21/2009”) – which regulates the terms for granting and renewing working visas/permits for non-resident workers, governs the measures to ensure the equal treatment of Macau resident and non-resident workers, and establishes minimum labour contract terms and limits on the duration of employment contracts with non-resident workers.
It should be noted that, without prejudice to the visa/working permit regime of non-resident workers, Administrative Regulation No 17/2004 (which prohibits illegal work; "AR 17/2004") provides an exception to the general prohibition of illegal employment, by allowing non-resident workers to provide services in the MSAR without holding the necessary work permit under the conditions set out in AR 17/2004, within a maximum period of 45 days for each consecutive or interpolated period of six months, and provided the entity to which the work or service is being provided maintains an updated record and proof of the agreement concluded between the companies in question.
According to the Macau Labour Relations Law, resident workers’ labour contracts are not subject to written form; however, fixed-term labour contracts and labour contracts with minors must be set down in writing, with the identification and signature of each party, and must be done in two originals, each party receiving an original thereof.
Non–residents' labour contracts are obligatorily made in writing, with the inclusion of mandatory minimum information as set out in Law 21/2009 such as the residence or headquarters of each party, the term of the contract and the grounds justifying it, the professional grade or functions agreed upon and the respective remuneration, the place in which the work will be performed, the working time and normal working hours, the date when the contract comes into effect, the functions of the replaced employee (in the case of replacement of an absent employee) and the date when the contract is entered into. The written labour contract must also be signed in two originals, whereof one is to be held by each party.
The general working hours rule is that the schedule shall not exceed eight hours per day and 48 hours per week. Such period can, however, be exceeded through agreement between the worker and the employer, and according with the characteristics of the operation of the company. In the case of agreement to prolong the working hours, which shall not exceed 48 hours per week, the worker is entitled to a minimum of ten consecutive rest hours and a total of not less than 12 hours per day of rest. For each five hours of consecutive work, the worker is entitled to a 30-minute break.
Overtime work may be performed under certain circumstances and is subject to the following conditions (as per Article 36 of the Macau Labour Relations Law). If by prior arrangement of the employer, irrespective of the worker's consent, overtime may be performed (i) in the case of force majeure, in which case the daily working hours shall not exceed 16 hours; (ii) when the employer faces great imminent loss, in which case the daily working hours shall not exceed 16 hours; or (iii) when the employer faces an unpredictable increase in the amount of work, in which case the daily working hours shall not exceed 12 hours. If overtime work is performed by prior arrangement of the employer, with the worker's consent, or at the initiative of the worker, with the agreement of the employer, overtime shall be limited to 12 hours per day. In this case, a written registry for proof of consent must exist.
The performance of overtime work by the employer's prior determination without the employee's consent gives him or her the right to earn the normal remuneration of work performed with an increase of 50%, whereas the performance of overtime work with the consent of the worker gives him or her the right to receive the normal remuneration of work performed with an increase of 20%. Remuneration for overtime work is without prejudice to the right to additional financial compensation, in particular for night work and shift work.
Work performed between midnight and 6am is considered night work. A worker who performs work under this scheme is entitled to an increase of 20% to the regular remuneration. This regime is not applicable to workers who were specially hired to work at night time.
According to the Macau Labour Relations Law, work that must be performed without a fixed schedule and at different times is classified as shift work. The shift work must respect the hourly limits of no more than eight hours per day and 48 hours per week or a minimum of ten consecutive rest hours (in total, 12 rest hours per day and a maximum of 48 work hours per week). A worker who performs work on shifts must have an increase of 10% in the normal remuneration, except when expressly hired to work on shifts.
All workers are entitled to be paid 24 hours' rest per each period of one week. The use of the weekly rest does not necessarily have a weekly frequency, in the case of an agreement by the parties to that effect or if the operation of certain activities makes this impracticable (eg, casinos); in these cases, workers are entitled to a rest period of four days per four weeks.
Work performed on rest days confers to the worker an increase of one day of basic remuneration and one extra day for rest for workers that have a monthly remuneration, and an increase of one day of basic remuneration in addition to the normal remuneration and one extra day for rest for workers who are paid by actual time worked.
The payment of a fair remuneration, compatible with the work performed, is an obligation of the employee according to the Macau Labour Relations Law.
According to the Macau Labour Relations Law, the worker can be entitled to a “Basic Remuneration”, which means all regular pecuniary payments, irrespective of name or form of calculation, payable to the employee for work performed in accordance with an agreement between the employer and the employee or by legal regulation, and may be entitled to a "variable remuneration”; ie, a non-regular remuneration paid by the employer to the employee, including allowances, complimentary bonuses and commissions, as well as tips not controllable by the employer.
There is currently no minimum wage for workers in general; the only activities in which the minimum wage is regulated are cleaning work and security services in property administration.
Remuneration is one of the rights of workers, irrespectively of their kind of working visa. According to the Macau Labour Relations Law, the basic remuneration must be defined, amongst other aspects, in accordance with the performed work and time.
On the other hand, it is a duty of the employer to pay the basic remuneration regularly and in a timely manner, while also holding the obligation to pay on the last day of the reference period agreed between the parties.
As regulated in the Macau Labour Relations Law, workers are entitled to a minimum of six working days of paid annual leave during the second year of service if the duration of the labour relation is more than one year. If it is less than one year but over three months, workers are entitled to half a day of leave for each month of work done, as well as the remaining working time if 15 days or more.
Regarding maternity leave, female workers are entitled to 56 days of maternity leave, in which 49 days must be taken immediately after the birth, and the remaining days may be taken consecutively or, alternatively, before or after the birth, at the choice of the worker. Regarding remuneration for maternity leave, the Macau Labour Relations Law makes a distinction between labour relations with more than one year, in which case the workers are entitled to receive the basic remuneration during the 56 days of maternity leave, and labour relations with less than one year's duration, in which case the worker shall have the right to receive the basic remuneration corresponding to the remaining period of maternity leave if she completes one year of work relation during the period of the maternity leave.
In the case of absence caused by illness, workers who have completed the probationary period are entitled to six days of paid absence in each calendar year.
Regarding the privacy and private information of the employer and the employee, in their relation, the Macau Labour Relations Law states that each party shall mutually respect each other’s personal rights; in particular, the rights to protect the privacy of their personal lives. Additionally, such Law also states that the right to privacy relates to access to and disclosure of information relating to the private and personal lives of either party, such as their respective family life, emotional and sexual lives, state of health, and political and religious convictions.
The Macau Labour Relations Law also provides for the non-discriminatory treatment of all job applicants; however, it also determines that distinction between applicants where, by reason of the nature of the work in question or the context of its performance, such distinction is a justifiable and determining requirement for the performance of the work shall not be qualified as discriminatory.
According to the Macau Labour Relations Law, there is an obligation upon the worker to be loyal to the employer and, in particular, not to compete directly or indirectly with the employer, nor to disclose information regarding the organisation, production methods or business transactions of the company/employer. The firm is faced with a non-competition clause when an employee agrees with his former employer not to practise his activity for another company or by himself and to preserve their secrets for a certain time.
In a geographically small region such as Macau, this situation is especially relevant since skilled human resources are very limited. Given this factor, most of the labour contracts made by companies with certain key workers or specific areas – such as the labour contracts between casinos and their workers – contain confidentiality and restrictive covenant clauses.
Good faith is a core principle that is present in the whole Macau Labour Relations Law that must be taken into account during the execution of all labour contracts. In the chapter that contains the general information and principles of labour contracts, the Law states that during negotiations and when establishing the labour contracts, both parties must act in good faith.
Regarding managers, and only for this specific position, the Macau Commercial Code states in Article 71 that they cannot, without express consent, exercise a commercial enterprise of the type for which they are engaged, either by themselves or through, or for the account of, a third party.
See 2.1 Non-competition Clauses.
Additionally, according to the Macau Commercial Code, all agreements or practices that have the intent of preventing, falsifying or restricting competition are generally forbidden. However, the law also establishes that unfair competition is not acceptable and legal actions may be brought against such behaviours.
The Personal Data Protection Law ("Law 8/2005") shall apply to the employment relation; inter alia, the personal data collected shall be made under the mandatory stipulations therein. However, the Office for Personal Data Protection has clarified that the employee data that the employer must collect (under Article 13 of the Labour Relations Law), namely for the purposes of calculation of wages and compensations, is exempt from the data protection regime.
In accordance with Law 21/2009, the hiring process of non-resident workers is conditional to certain principles that define that its nature is supplemental, provisional, non-discriminatory, bound by an equal-salary policy, secondary, sustainable, subject to prior approval and specific. Compliance with the referred-to principles is evaluated by the Labour Affairs Bureau, to which employers should request prior hiring approval ("quota").
The approval and allocation of quotas takes into consideration, inter alia, the financial good standing of the employer, the proposed working conditions granted to workers, market insufficiencies and the number of local workers hired by each applicant employer company. The Labour Affairs Bureau applies a discretionary ratio of one local to one non-resident worker based on the principle that local hiring is prioritised and that overseas recruitment is to be regarded merely as supplemental. The referred-to ratio is the major trial for Macau companies, which have their power to hire bounded due to the lack of local manpower.
As stated above, the hiring of non-resident workers is supplemental; ie, such workers can only be hired if no resident workers are available for that position.
The hiring of non-resident workers is subject to prior authorisation of the Labour Affairs Bureau (“quota”). As such, the Labour Affairs Bureau has a database of all the quotas of Macau companies and the Immigration Department, which is the entity that grants the working visas (“blue cards”), keeps a record of all the non-resident workers who perform their work in Macau.
According to Macau law, there are no collective labour relations.
See 5.1 Status/Role of Unions.
See 5.1 Status/Role of Unions.
According to the Macau Labour Relations Law, labour contracts may be terminated by revocation, termination, expiration or denunciation.
Revocation comprises a mutual agreement between the employer and the employee, without the need for prior notice, in which case compensation is not due; such agreement must be made in writing and cannot be previously stipulated in the labour contract.
The termination of the labour contract can occur with or without just cause; for the purposes of termination, just cause shall be considered as any fact of serious circumstance that renders the continuance of the employment impossible. Termination with just cause by the employee of the employer must be made in writing and within 30 days of the knowledge of the grounds for termination, in which case the complainant shall describe the facts complained of the counterparty.
The employer can also terminate the labour contract without just cause, with the payment of an indemnity proportional to the duration of the employment relation, with the prior notice indicated in the contract or 15 days if the contract is silent. The termination by the employee without just cause must also be preceded by a prior notice as per the contract (or seven days if the contract is silent), which cannot be greater than the one provided for the employer.
Expiration of the labour contract shall take place at the end of the term of the contract or when the purpose of the contract has been attained, or when there is a supervening impossibility of the worker to perform the work.
Denunciation of the contract may take place during the trial period, in which case no compensation is needed, nor is prior notice required; however, prior notice shall be necessary if provided by the contract or if the trial period is over 90 days, in which case a seven-day period of prior notice is mandatory.
Collective redundancies related to the termination of labour contracts is not a concept covered by the Macau Labour Relations Law. Hence, as long as the legal requirements for the individual termination of employment contracts are fulfilled, there are no restrictions under Macau law to the termination of numerous or all employment contracts of the same company, since the individual termination procedures for each worker are complied with.
According to the Macau Labour Relations Law, the labour contract may be terminated by revocation, rescission, expiration and denunciation; the notice periods will be dependent on the type of termination.
In the case of revocation, no notice period is required and no compensation is due.
According to Article 68 of the Macau Labour Relations Law, either the employer or the employee may rescind the labour contract with or without just cause. In the case of rescission of the labour contract with just cause, the employer must give the employee a written notice of the decision to rescind the labour relation within 30 days after knowledge of the relevant fact, summarily describing the facts imputable to the employee; the lack of notice or the lack of grounds in the just cause invoked shall be considered rescission of the labour relation without just cause, in which case the employee shall be entitled to compensation.
If the initiative for the rescission is of the employee, with just cause, the employee shall give written notice to the employer of the decision to terminate the labour relation within 30 days of the date of knowledge of the fact, briefly describing the facts that are imputable to the employer.
The Macau Labour Relations Law also states that if the rescission of the contract is made with just cause, the party that takes initiative shall not need to serve a previous notice on the other party for terminating the labour relation; on the other hand, in the case of termination of the contract without just cause, a notice of a period provided for in the contract must be given, whereupon the length of the previous notice period prescribed for the employee shall not exceed that for the employer.
Should the contract have no provisions on the length of the previous notice or when the length of the previous notice provided for in the contract is less than what is provided in the Macau Labour Relations Law, the length of the previous notice required to terminate a labour contract shall be (i) 15 days in the case of rescission on the initiative of the employer, or (ii) seven days in the case of rescission on the initiative of the employee.
The termination of the labour relation due to the expiry of the labour contract shall not be subject to the obligation of previous notice or compensation in lieu.
The denunciation of the labour contract during the probationary period does not require any previous notice and its effects are immediate.
Termination of the Employment Contract by the Employer, Based on Just Cause
The employer shall give the worker written notice of the decision to terminate the employment relationship within 30 days after knowledge of the relevant fact (just cause) and describe, in summary, the facts attributed to the worker's wrongful conduct; in the case of a lack of written notice or lack of grounds of the invoked just cause, the termination shall be regarded as termination without (just) cause, in which case the worker shall be entitled to a compensation.
The law considers as just cause the following situations:
Termination of the Employment Contract by the Worker, Based on Just Cause
A prior notice shall be given to the employer within 30 days from the knowledge of the facts that pertain to the just cause, describing the relevant facts that are attributed to the employer; in the case of a lack of written notice or lack of grounds of the invoked just cause, the termination shall be regarded as termination without (just) cause, in which case the employer shall be entitled to compensation.
The law considers as just cause the following situations:
Employment termination by (mutual) agreement is permitted under Macau law. Under Article 67 of the Labour Relations Law, the employer and the employee may terminate the labour contract by mutual agreement without notice and without having to pay any compensation, notwithstanding that such agreement is not included in the labour contract. However, the agreement on termination must be set down in a written document, which must contain the date of signature and commencement of its effects.
Article 5 of Law No 4/98/M ("Framework Law on Employment Policy and Worker's Rights") distinguishes that female workers, underage workers and disabled workers are subject to special protection. However, concrete protective measures regarding their dismissal are generally limited to the provisions of the Labour Relations Law and specifically to the provision of Decree Law No 52/95/M in the case of female workers.
In relation to the employee's protection, it is possible to identify from the onset in Article 10 of the Macau Labour Relations Law. In a nutshell, this protection comprises protection of the employees from abuse of power.
The Macau Labour Relations Law does not establish a strict regime for dismissal and its consequences. Generally, the Law only states that the employer shall not unilaterally terminate the labour relation with a female employee during pregnancy or within three months after confinement, except with just cause (Article 56).
In the case of violation, a claim can be presented in the Labour Affairs Bureau (first stage) or court, which will analyse the case and decide whether any compensation is due.
The principle of equality in the Macau legal system is divided into three strands: equality between non-resident workers, equality between resident workers and equality between non-resident and resident workers.
According to the Labour Relations Law, “All residents of the Macau Special Administrative Region shall have equal opportunities for employment based upon non-discrimination conditions.”
On the other hand, the Law for the Employment of Non-resident Workers comprises the principle that non-resident workers must not be treated less favourably than resident workers in terms of rights, obligations and conditions of work.
Regarding the hiring process of non-resident workers, its nature is supplemental to the hiring of resident workers; ie, resident workers must be hired first and only if the local market does not have sufficient manpower may employers source abroad.
The principle of equality in Macau must be analysed taking into account that between non-resident workers and resident workers the equality is only during the performance of the labour contract, since during the negotiation, hiring and termination process the equality between resident and non-resident workers is not a milestone.
The Macau Judicial Base Court (first-instance court of the Macau jurisdiction) has a Labour Section that is in charge of disputes related to labour questions.
In judicial court, the representation of the employee shall be made by a lawyer.
Arbitration in labour disputes is possible; however, it is not usual.
Pre-dispute/pre-litigation agreements are enforceable under Macau Law.
A prevailing employee/employer can be awarded attorney's fees, upon request and subject to freely appreciation of the judge/arbitrator.