By Poyi (Natalie) Leung
Macau’s social security system, which excludes migrant workers from its scope of benefits, is discriminatory and goes against the Basic Law, Pedro Pereira de Sena, a senior legal advisor to the Legislative Assembly said yesterday.
Delivering a speech concerning non-local labour and the right to social security in the Third International Conference on “The Legal Reforms of Macau in Global Context” – Social Rights at the University of Macau, Sena suggested that the new social security system has deprived migrant workers of the right to social security in an “improper way”, which contradicts the legislative intention of the Imported Labour Law.
According to the legal advisor, The International Covenant on Economic, Social, and Cultural Rights (ICESCR) that is applied to Macau is the “core” to elaborate the right.
Article 9 of the covenant states that all its signatories agree that every person has the right to enjoy social security including social insurance.
With regard to non-residents, The Committee on Economic, Social and Cultural Rights has pointed out that Article 2 of ICESCR prohibits discrimination generated by nationalities. “If non-nationals, including migrant workers, have contributed to the social security system, [they] should be able to enjoy the benefits or returned the contributions when leaving the country. Migrant workers’ rights should not be influenced because of the change in labour location.”
The United Nations (UN) Economic and Social Commission has also commented that “social security should be deemed as a social product, but not a kind of goods or a tool for the economic or financial policy,” Sena quoted.
The legal advisor said to exclude non-local workers from the social security system was a decision “mainly based on an economic reason” – ensuring sustainability of the system when the monthly contribution amounts remain low.
“Because of this economic factor, legislators required beneficiaries of the public social security system to have a special connection with Macau – a concept of residence – and that’s why non-local workers are excluded from the system,” Sena said.
Yet, the senior legal advisor did not agree with this concept and said the system’s coverage should be determined in line with the “territorial principle” rather than the “nationality relationship”.
The adoption of “nationality relationship” means that migrant workers cannot be protected by the social security system from the host country or their country of origin, he added.
Same social functions
Sena said once a migrant worker starts working in Macau, it immediately implies that his or her stay on the Macau SAR soil has been confirmed, which leads to “the concept of residence”.
“Migrant workers, through work, perform the same social functions as those of local workers in the Macau society, despite that their form of work is only temporary,” he explained.
Therefore, he said the right to social security should extend to all labourers who are working legally in Macau as having been implied in Article 43 of the Basic Law.
The legal advisor said since the current social security system is based on contributions, migrant workers should be able to take part in it and can only receive related benefits if they have made the regular contributions.
“This move can better meet the intention of the system to maintain a sound and stable financial status,” Sena stressed.
With regard to age pensions, he said the international practice is that migrant workers’ host country and country of origin will sign a bilateral agreement so that their social security contributions can be transferred home lastly.
“Without this mechanism, migrant workers will remain in a condition without any kind of social security,” he added.
Sena stressed that Macau has to admit that non-local workers have contributed to the economic development and a society that contains foreign population is a “fairer society, one that can gain real progress”.
“Macau’s legal systems have to respect the principle of equality and comply with the current international law in order to treat its non-local labour properly,” Sena concluded.