Administrative Regulation no. 17/2004, June 14

Regulation on Prohibition of Illegal Work

The Chief Executive, after consulting the Executive Council, decrees, in accordance with paragraph 5 of article 50 of the Basic Law of the Macau Special Administrative Region, to apply as an administrative regulation, the following:

Article 1

Object

This administrative regulation establishes the prohibition of unlawful accepting or rendering work, and the corresponding rules on penalties.

Article 2

Scope of application

For the purpose of this administrative regulation, illegal work is considered as that which is provided by:

1) A non-resident who does not have the necessary authorization to exercise an activity for another party, even if not paid;

2) A non-resident who, despite having the necessary authorization to work for another party, is working, with or without pay, for an entity other than that which has applied for his employment;

3) A non-resident who, despite having the necessary authorization to work for another party, is working disregarding other conditions of employment imposed by the respective act of authorization, with the exception of that mentioned in paragraph 2;

 4) A non-resident who exercises a self-supporting activity disregarding the conditions mentioned in the following article.

Article 3

Self-supporting activity

1. The direct and personal exercise of a self-supporting activity by a non-resident must be preceded by an administrative authorization for such purpose.

2. The provision of the previous paragraph does not apply to cases where there is specific regulation authorizing a non-resident to exercise, personally and directly, a self-supporting activity.

3. The authorization mentioned in paragraph 1 shall be requested to the Secretary for Economy and Finance through the Labor Affairs Bureau; the respective application shall follow the procedural rules applicable to the hiring of non-resident workers.

4. A non-resident who is already personally and directly exercising a self-supporting activity only on the basis of tax registration of the start of activity shall request, within 30 days from the entry into force of this administrative regulation, the authorization mentioned in paragraph 1.

Article 4

Exceptions

1. Unless there is a legal provision to the contrary, the following cases in which a non-resident in providing an activity are not included in paragraph 1 of article 2 of this administrative regulation:

1) An agreement has been concluded between enterprises with registered office located outside of the Macau Special Administrative Region, henceforth MSAR, and individuals or collective persons with registered office in the MSAR, to execute specific or occasional works or services, namely when there is the need to use workers from outside the MSAR to provide guidance, technical, quality control or supervision services;

2) An individual or collective person with registered office in the MSAR invites a non-resident to exercise religious, sports, academic, cultural interchange or artistic activities.

2.The exceptions mentioned in paragraph 1 for the stay of a non-resident to render a service or work are limited to a maximum period of forty-five continuous or discontinuous days in each period of six months.

3. The period of six months mentioned in the previous paragraph is counted from the date of the lawful entry of the non-resident in the MSAR.

4. In the cases mentioned in the sub-paragraph (1) of paragraph 1, there must be a permanently updated record of the days in which the non-resident effectively exercises activity, which shall be shown to the inspecting entities mentioned in the following paragraph whenever requested.

5. Whenever the Labour Affairs Bureau (DSAL), the Public Security Police Force (CPSP), or the Customs of Macao Special Administrative Region (SA) consider that an activity exercised by a non-resident does not comply with the situation mentioned in paragraph 1, they shall communicate such fact to the individual or collective person of the MSAR to which the non-resident provides service; after knowing about this communication, the individual or collective person shall terminate the activity of the non-resident.

Article 5

Penalties

Without prejudice to criminal liability as may arise, the breach of the provisions of this administrative regulation is an administrative offence.

Article 6

Liability for payment of fines

1. The offender is liable for the payment of the fines, regardless of whether the offender is a regularly registered collective person or not.

2. If the offender is a collective person, the administrators or whoever represents it in any other way shall also be jointly liable for the payment of the fine, if considered responsible for the offence.

Article 7

Inspective action

1. The inspection of the compliance with the provisions of this administrative regulation is a competence of the DSAL, the CPSP, or the SA, in accordance with their respective areas of intervention.

2. If the CPSP or the SA detect violations of this administrative regulation when performing the tasks of inspection mentioned in paragraph 1, they shall prepare and send the respective report to the DSAL for confirming and setting the fine.

Article 8

Duty of communication

Under penalty of disciplinary proceedings, all workers of the public administration are obliged to communicate to the DSAL any situations which breach the provisions of this administrative regulation and which they become aware of in exercising their functions, by filling the form attached to this law.

Article 9

Fines

1. The following shall be punishable with a fine:

1) An entity which employs a non-resident who is in the situation mentioned in paragraph 1 of article 2; an individual or collective person of the MSAR who breaches the limits and conditions provided by article 4; and whoever exercises a self-supporting activity in breach of article 3. The fine shall be from $20,000.00 (twenty thousand patacas) to $50,000.00 (fifty thousand patacas) for each worker.

2) An entity which employs a non-resident who is in the situation mentioned in paragraph 2 of article 2. The fine shall be from $10,000.00 (ten thousand patacas) to $40,000.00 (forty thousand patacas) for each worker.

3) An entity which hires a non-resident in a situation mentioned in paragraph 3 of article 2.  The fine shall be from $5,000.00 (five thousand patacas) to $20,000.00 (twenty thousand patacas) for each worker.

4) A non-resident who renders activities in the situations mentioned in paragraph 1 and 2 of article 2 or who breaches the limits and conditions stated in article 4. The fine shall be from $ 5,000.00 (five thousand patacas) to $ 20,000.00 (twenty thousand patacas).

2. The fine mentioned in sub-paragraph 2 of the previous paragraph shall equally apply to an employing entity to whom an authorization to hire workers has been granted if the respective investigation produces evidence that it promoted or authorized the placement of a non-resident to the service of another entity not authorized for such purpose.

Article 10

Accessory penalty

Once any of the situations mentioned in paragraphs 1, 2 and 4 of article 2 has been established, a non-resident may be prevented from exercising any employment activity in the MSAR for a period of two years, counted from the date of the notification for payment of the respective fine, and this prohibitive decision shall be communicated to the CPSP.

Article 11

Recidivism and its effects

1. For the purpose of this administrative regulation, a recidivism shall be considered as the practice of another breach of this law, when committed within 4 years counted from the date of the judicial or administrative decision which has applied a penalty or sanction without further possibility of appeal.

2. In case of recidivism, the minimum limit of the fines shall be raised by a quarter.

3. The time limit set for the accessory penalty mentioned in the previous article shall be raised to the double if the respective offender is a recidivist.

Article 12

Competence for application of penalty

1. The DSAL shall initiate proceedings against the offenders and shall apply the penalties mentioned in this administrative regulation.

2. The proceedings for the application of penalties shall follow the steps mentioned in the Regulation for the Inspection of Labour, with the necessary adaptations.

Article 13

Entry into force

This administrative regulation shall come into force on the date following that of its publication.

Approved on 20 May 2004.

To be published.

The Chief Executive, Ho Hau Wah.

———

Government of the Macau Special Administrative Region

Report of Illegal Work

Guidance for filling in this form:

(1) Date of report;

(2) Name of person reporting;

(3) Name of entity for which the person reporting works and respective position;

(4) Date of inspection;

(5) Name of business premises inspected;

(6) Address of business premises or company inspected;

(7) Name of the reported non-resident;

(8) Type of identification document of the reported non-resident;

(9) Number of identification document of the reported non-resident;

(10) Specific activity which the non-resident was exercising at the moment of inspection;

(11) Name of owner or responsible person of the inspected business premises;

(12) Type of identification document of the owner or responsible person of the business premises;

(13) Number of identification document of the owner or responsible person of the business premises;

(14) Address of owner or responsible person of the business premises;

(15) Name of persons who also took part in this inspection.

This form is part of the annex to Administrative Regulation no. 17/2004.