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13 March 2014
Due to speedy growth in the gaming and hospitality industries, the Macau Special Administrative Region is highly reliant on foreign workers. As a result, the regulation of work permits has become increasingly important.
In Macau, non-residents needing work permits can be classified into two main types:
In accordance with Law 21/2009 (amended by Law 4/2013), the long-term non-resident worker hiring process is conditional on certain principles that define its nature as:
Compliance with these principles is evaluated by the Human Resources Bureau, from which employers should request approval before hiring (quota).
Law 21/2009 categorises long-term non-resident workers as:
To qualify to hire both skilled and non-skilled overseas workers, an employer must be:
All quotas are provisional and validity may vary based on the specific job scope of the workers or the employment contract term. In practice, quotas are granted for one or two-year periods and are subject to reassessment and a renewal process thereafter.
Skilled workers are defined as having:
To request a quota to hire a skilled worker, an employer must prove that the worker has special qualifications or skills for a specific position and that it is impossible to hire a person with equal qualifications locally. Approval is always individual and on a case-by-case basis.
For positions that do not require academic qualifications or relevant professional experience, employers should also request prior approval from the Human Resources Bureau. The category of non-skilled workers requires a subsidiary application. The major difference in terms of the approval process is that proof of the worker's competence is not required. In the case of non-skilled workers, the quota is always generic. An employer obtains quota approval for a particular position to be fulfilled by a non-resident worker who is not specifically identified and who may even be replaced by another non-resident worker while that quota is valid.
In such cases, the approval and allocation of quotas takes into consideration:
The bureau applies a discretionary ratio based on the principle that local hiring is a priority and overseas recruitment is to be regarded as merely supplemental. Consequently, the overall number of local workers and non-resident workers in each company applying for an overseas work quota is regarded as one of the standards of the approval process. This ratio imposes a great challenge on employers that have no choice but to recruit non-resident workers due to lack of local manpower. It is often reported with increasing concern from companies operating in Macau, that applications for quotas are rejected by the bureau based on the lack of local employees. This seems to compromise significantly the economic growth of Macau, including the gaming and hospitality industries. Additionally, the approval criteria have a dramatic effect on small local businesses, as they may be rendered completely unfeasible when they are faced with the inability to compete with the hiring conditions of large-scale employers in the local market.
The process for domestic workers is similar to that for non-skilled workers, but is faster.
The legal framework for occasional workers is established by Administrative Regulation 17/2004, as an exception to the illegal working regime.
Generally, non-resident workers who do not hold a valid working visa are considered illegal workers. However, Article 4 of the regulation states that a non-resident may work under certain conditions without a permit through an agreement between a company based outside Macau and a company or individual based in Macau. The agreement provides for occasional and certain or determinate services:
These exceptions are limited to a maximum of 45 alternate or consecutive days per semester.
The execution of self-profit activity permit is regulated in Article 3. This type of permit is also treated as an exception to the illegal working framework and is subject to prior authorisation by the bureau. To apply for this permit, the applicant must demonstrate that he or she has experience in the intended job or activity to be exercised in Macau, through recommendation or reference letters from previous employers.
The lack of local manpower alongside growth in the gaming industry will be Macau's biggest challenge in coming years. The new mega casino-resort projects under construction in the Cotai gaming area account for billions in construction investment and are set to begin opening in 2014, with completion expected by 2017. According to various estimates, up to 50,000 workers will be required for construction and operation.
In 2013, the unemployment rate in Macau stood at 1.8% (representing approximately 10,800 people). Even if this 1.8% is regarded as fit to comply with minimum hiring standards, the numbers are self-explanatory and it is clear that local manpower is not enough. It is unknown whether the government will review and simplify the quota approval systems to facilitate the overseas hiring process.
For further information on this topic please contact Pedro Cortés or Helena Nazaré Valente at Rato Ling Vong Lei & Cortés Advogados by telephone (+853 2856 2322), fax (+853 2858 0991) or email (firstname.lastname@example.org or email@example.com). The Rato Ling Vong Lei & Cortés Advogados website can be accessed at www.lektou.com.
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