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NOTE:   The Chinese and Portuguese versions of the text of this law are legally binding.

               This English version is for reference only.

 

 

DECREE-LAW Nº 40/95/M, August 14

 

Employees’ Compensation Insurance Ordinance

 

CHAPTER I

GENERAL REGULATIONS

 

 

Article 1

(Object)

 

This Ordinance establishes the right to compensation in respect of occupational accidents and occupational diseases.

 

 

Article 2

(Scope)

 

1.            The employees of all sectors of activity, excluding the civil servants to whom the specific legislation on occupational accidents is applicable, are entitled to compensation for loss or injuries resulting from accidents due to employment or occupational diseases according to the terms referred to in this Ordinance.

 

2.            The employees, contracted in the Territory to render services to employers with legal existence therein, who are victims of occupational accidents overseas shall be entitled to the compensation provided for in this Ordinance, except if the legislation of the country where the accident happened guarantees the right of the victim to compensation.

 

3.            If the compensation referred to in the preceding paragraph is lower than the compensation set out in this Ordinance, the employer shall be liable for the difference.

 

 

Article 3

(Terminology)

 

In this Ordinance:

 

(a)          “ACCIDENT ARISING OUT OF EMPLOYMENT”, “OCCUPATIONAL ACCIDENT” or only “ACCIDENT” – means an accident occurring at the place of work and during the working hours from which directly or indirectly result injuries, functional disorder or disease causing the death of the employee or temporary or permanent reduction of his working or earning capacity.

An accident is also considered for the purpose of this Ordinance to arise out of the employment if:

 

(i)            happening outside the place of work and working hours during the execution of works determined or authorized by the employer;

(ii)          occurring during the execution of voluntary work resulting in some profit for the employer;

(iii)         occurring within the place of payment where the employee is there for receiving his salary, wages or other earnings except when such payment is effected by crediting the bank account of an employee;

(iv)        during the transportation of the employee to and from the place where medical assistance or treatment will be provided as a consequence of a prior accident, and while he remains at the said place for such assistance or treatment;

(v)          during travel to and from the place of employment, when the mode of transport utilized is supplied by the employer.

 

(b)         “EARNINGS” – shall include:

 

(i)            any salary and wages paid in cash to the employee by the employer, as determined by the contractual relationship of employment and which are not excluded by this Ordinance;

(ii)          any privilege or benefit which is capable of being estimated in money, determined by legal relationship of work and not excluded by this Ordinance, including the value of any food, fuel or quarters supplied to the employee by the employer if as a result of an accident or occupational disease the employee is deprived of such food, fuel or quarters;

(iii)         any overtime payments or other special remuneration for work done, whether by way of bonus, premium, allowance, commission or otherwise, if of constant character or for work habitually performed;

(iv)        tips, if the employment be of such a nature that the habitual receiving thereof is open and customary and is recognised by the employer;

 

but shall not include:

 

(i)            remuneration for intermittent overtime;

(ii)          casual payments of a non-recurrent nature;

(iii)         the value of a traveling allowance or any traveling concession;

(iv)        contribution paid by the employer of an employee towards any pension or provident fund;

(v)          sum paid to an employee to cover any special expenses incurred by him by the nature of this employment.

(c)          “EMPLOYEE” – means a person, who works for another person for a payment, independently of the nature and form of contract by which these services/labourer’s activities are established as well as the person who is rendering his services under a contract of apprenticeship or training, provided that, in any case, the following persons are excepted from the definition of “employee”:

 

(i)            any member of the employer’s family who resides with him;

(ii)          any person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished or repaired in his own home or on other premises not under the control or management of the person giving out such materials or articles and for whom the work is executed;

(iii)         any person who has a contract with the employer for a predetermined service with total autonomy and freedom of action on the part of the person rendering such service and with a previously fixed price.

 

(d)         “EMPLOYER” or “FIRM” – means each and every person including his representatives, individually or collectively, who directly or indirectly avails himself of the services/labourer’s activities of an employee, independently of the nature and form of contract of which these services/labourer’s activities are established;

 

(e)          “ENTITY RESPONSIBLE” or “PERSON RESPONSIBLE” – means the entity who is liable for the accident or for the occupational disease;

 

(f)           “HOSPITAL” – means any hospital, health centre or medical clinic;

 

(g)          “INJURY” – means any bodily injury, functional disorder or disease either occupational or as a result of accident arising out and in the course of the employment;

 

(h)          “INSURER” or “INSURANCE COMPANY” – means a legally authorized entity that carries on Employees’ Compensation insurance in the territory of Macau;

 

(i)            “MEDICAL PRACTITIONER” – means any medical practitioner or master of traditional Chinese medicine who is registered with the Department of Health Services of Macau;

 

(j)           “OCCUPATIONAL DISEASE” – means any disease, as contained in the list annexed hereto, which is contracted by an employee due solely and exclusively to his exposure, during a determined period of time, to the nature of the industry, activity or environment where he has rendered or is rendering his services, and specifically:

 

(k)         “OCCUPATIONAL RESPIRATORY DISEASE” – means any alteration to the health of the individual resulting from the inhalation of dust, gas, smoke and aerosols, or due to the exposure to ionizing radiations or other physical agents wherein a cause/ effect relationship with the professional activity can be established, independently of the symptomatology shown and of the physiopathological mechanism involved;

 

(l)            “PERMANENT INCAPACITY” – means incapacity, resulting from an accident or occupational disease suffered by an employee, which impedes the employee permanently from rendering his full working or earning capacity. This may be:

 

(i)            “total” if the injuries suffered or a disease contracted by an employee impedes him totally from working or earning;

(ii)          “partial” when the victim can still engage in some other employment after having suffered a reduction in his working or earning capacity and such reduction is in conformity with the percentage of loss of earning capacity schedule annexed hereto.

 

(m)        “PLACE OF WORK” – means all the area of manufacture or activity of the employer;

 

(n)          “TEMPORARY INCAPACITY” – means incapacity, resulting from an accident or occupational disease suffered by an employee, which impedes the employee temporarily from rendering his full working or earning capacity. This may be:

 

(i)            “total” if, during such period of time, the employee is totally incapacitated from working or earning;

(ii)          “partial” if, during the said period of incapacity, the victim is able to take up an employment secondary to his normal employment or earning.

 

(o)         “VICTIM” – means an employee who sustains an accident during his employment or who is suffering from occupational disease;

 

(p)         “WORKING HOURS” – means the normal period of work, the period preceding or following such period of work, necessary for the preparation of work or for similar acts, as well as normal or forcible interruption of work.

 

 

Article 4

(Liability)

 

Without prejudice to the provisions of Article 17 paragraph 1 of this Ordinance and of the Organic Law of the Social Security Fund, approved by Decree-Law 58/93/M, of 18th October, the employers shall be liable for the compensation provided for in this Ordinance in respect of their employees.

 

 

Article 5

(Licence for contract works)

 

1.            Licences for contract works shall only be granted if the petitioner can prove that his liability for accidents occurring to his employees under his employment is legally guaranteed.

 

2.            The competent authorities shall certify in the licence document referred to in the previous paragraph the name of the insurance company and the relevant policy number.

 

3.            The provisions of the preceding paragraphs shall apply, with necessary adaptations, to the adjudication of public works in any form.

 

 

CHAPTER II
ACCIDENTS

 

Article 6

(Exclusions)

 

1.            This Ordinance does not apply to the accidents:-

 

a)      occurring while the employee is engaged in works of casual nature, of short periods, except in activities for the purpose of profit;

b)      occurring during the execution of work of short duration, if the person to whom the service is rendered usually works alone or with his family members.

 

2.            The exclusion referred to in (b) of the previous paragraph does not apply to accidents resulting from the use of machinery.

 

 

Article 7

(Characterization)

 

1.            No compensation shall be payable in respect of accidents:

 

a)      resulting from deliberate act or omission of the victim, if he had acted without justified reason in contravention of the security measures imposed by his employer;

b)      resulting exclusively from the victim’s serious and inexcusable fault;

c)      resulting from accidental or permanent loss of the use of the victim’s judgment, except if this loss is due to the execution of the job itself, or is independent of the victim’s wish, or if the employer or his representatives, knowing the states of the victim, consent to the rendering of his services;

d)      resulting from “force majeure”;

e)      resulting from tumults, alterations to the public order and other acts of similar nature.

f)        resulting from a third party act proved to be exclusively due to personal reasons and not labour related, in spite of its occurrence during work time, considering the victim’s behaviour before and during the act and the connections with the author or his/her milieu, especially the connection with the organized crime. (*)

(*) Amendment – See Law nº 12/2001.

(*) NOTE: The English version of paragraph 1 f) was translated by the Labour Affairs Bureau.

2.            For the purpose of paragraph 1 b) it shall not be considered as the victim’s serious and inexcusable fault if the act or omission of the victim is due to this familiarity with the daily risks involved in the execution of his job.

 

3.            For the purpose of paragraph 1 d) it shall be considered as a case of “force majeure” when the accident is solely due to unavoidable forces of nature, independently from human will and does not constitute a risk resulting from labour conditions nor does it happen while the employee is working under the express direction of the employer in obvious dangerous conditions, or during normal execution of tasks imposed on the firm by the unexpected operation of the forces of nature.

 

4.            Notwithstanding the occurrence of situations referred to in preceding paragraph 1, the employer is liable to provide to his employees first-aid and transportation to a place where they can receive medical treatment.

 

 

Article 8

(Pathological predisposition)

 

The pathological predisposition of a victim of an accident does not exclude his right for a complete recovery, except when it is the sole result of an injury or disease or the outcome or fraudulent concealment.

 

 

Article 9

(Previous injury or disease)

 

1.            When any injury or disease resulting from an accident is aggravated by previous injury or disease, or when the latter is aggravated by the accident the incapacity shall be determined as resulting exclusively from the accident, except the victim had already received compensation for the previous injury or disease.

 

2.            If the victim had been suffering from incapacity before the accident, the compensation will correspond to the difference between the previous incapacity and the compensation calculated for the latest accident assuming to be the only cause of incapacity.

 

3.            An employee who sustains any injury or disease while he is receiving medical treatment for an injury or disease resulting from an occupational accident is entitled for compensation under this Ordinance, if such injury or disease results from the said medical treatment.

 

 

Article 10

(Proof of accident)

 

1.            The injury or disease sustained by any employee shall be presumed as resulting from an occupational accident, unless proved to the contrary, when the same occurs:

a)      at the place of work, and during working hours;

b)      under any circumstances referred to in Article 3 paragraph (a) subparagraphs (i) to (v);

c)      within the period of three days after the accident.

 

2.            If the injury or disease is not apparent within the period mentioned in the preceding paragraph c), the victim or his legal beneficiaries entitled to the compensation shall prove that such injury or disease was a result of the accident.

 

 

Article 11

(Fulfillment of clinical and surgical prescriptions)

 

1.            The employee involved in an accident shall submit himself for treatment by a medical practitioner appointed by the entity responsible, in order to fulfill the clinical and surgical prescriptions necessary for the cure of the injury or disease and for the recovery of his working capacity, without prejudice to the right to claim for medical practitioner appointed by the Court or for the services of the Department of Health Services of Macau.

 

2.            No compensation shall be payable in respect of incapacities recognized by the Court as consequence of unjustified refusal or non-fulfillment of the clinical and surgical prescriptions referred to in the preceding paragraph, or as having been voluntarily caused.

 

3.            The refusal of the employee to submit himself to a surgical operation is always considered justified when the nature of the operation or the condition of health of the victim is likely to endanger his life.

 

 

Article 12

(Clinical cure)

 

For the purposes of this Ordinance, clinical cure means a condition where the injuries or disease are completely healed or are unlikely to change under proper therapy.

 

 

Article 13

(Relapse or aggravation)

 

1.            In case of a relapse or aggravation, the right to compensation provided under this Ordinance shall prevail during such re-incidence, whatever be the condition so ascertained.

 

2.            The provision of the preceding paragraph shall include the intervening sickness relating to the consequences of the accident.

 

 

Article 14

(Transportation)

 

1.            The entity responsible shall provide free transportation necessary for the medical observation and treatment of the employee, including the transportation required for the appearance of the employee before the public authorities on account of the accident.

 

2.            The provision of the preceding paragraph does not include the appearances before public authorities requested by the victim, which are considered to be totally unfounded.

 

3.            The mode of transport that the victim of an accident shall use by right is public transportation, except when the medical practitioner determines that, due to the state of the victim, other means of transportation shall be provided.

 

4.            Where the victim is under 16 years or over 56 years of age, or the nature of the injury or of the disease so demands, the person accompanying the victim shall have the same right to transportation as the victim.

 

 

CHAPTER III
OCCUPATIONAL DISEASE

 

 

Article 15

(Application)

 

The rules applicable to occupational accidents shall equally apply to occupational diseases without prejudice to those specifically applicable.

 

 

Article 16

(Compensation)

 

1.            The employee shall be entitled to compensation, when the term of effectiveness referred to in the schedule, from the date the employee is no longer exposed to a risk and until the date of the final and unequivocal diagnosis of the disease, has not elapsed.

 

2.            If, in the case of silicosis, the employee has been exposed less than 5 years to this risk, he shall prove that the disease arises as a direct consequence of his employment and does not represent normal wear and tear of the body.

 

3.            Any aggravation of an existing disease, solely due to the nature of professional activity, shall be subject to the payment of compensation.

 

 

 

Article 17

(Prescribed period)

 

1.            The employers, for whom the victim has been working in the same industry or environment for at least three months during the two years preceding the cessation of the work responsible for the disease, shall be liable to pay compensation for any occupational disease and proportionally according to the period of work performed, or, under identical terms, the insurers who have covered the risk.

 

2.            The applicable compensation shall first be paid by the employer who last employed the employee or by the respective insurer, retaining the right to recover from those responsible, under the terms of the preceding paragraph, the compensation paid.

 

 

CHAPTER IV
NOTIFICATION OF ACCIDENT AND DISEASE

 

 

Article 18

(Victim and family members)

 

1.            The victim or his family members shall notify, orally or in writing, the employer or his representatives within 24 hours after the occurrence of an accident, unless the employer or his representatives have witnessed the accident or if they have knowledge of the accident within the same period.

 

2.            If the victim’s condition or other duly proved circumstances shall not permit the fulfillment of the provisions referred to in the preceding paragraph, the period for notification of an accident shall be 24 hours after the termination of those impeding conditions.

 

3.            If an injury is discovered or acknowledged after the accident, the period established in paragraph 1 shall be counted from the date of discovery or acknowledgement.

 

4.            No compensation shall be payable for incapacities recognised by the Court as resulting exclusively from the victim’s failure to notify, within the periods established in the preceding paragraphs, the accident to his employer or the person in charge of the direction of the works, which makes it impossible for the employer or the person in charge to provide the necessary medical assistance.

 

 

Article 19

(Employer transferring liability)

 

An employer who has transferred his liability to an insurance company shall notify the occurrence of any accident to such company in accordance with the terms of the policy.

 

Article 20

(Employer not transferring liability)

 

1.            An employer whose liability is not legally covered shall communicate in writing to the competent Court, independently of any appraisal of legal conditions for compensation, all cases of occupational accidents resulting in death, permanent incapacity or temporary incapacity for more than 12 months.

 

2.            In the case of death, the accident shall be communicated to the competent Court immediately by telegraph or by facsimile and in the cases of permanent incapacity or temporary incapacity within 8 days from the date of the accident or of knowledge of such situations.

 

3.            Where the employer is unable to comply with the requirements of the preceding paragraphs, the said requirements shall be complied with by the person in charge or responsible for the direction of the works.

 

 

Article 21

(Insurers)

 

1.            Insurers shall communicate to the competent Court in writing and within a period of eight days from the date of discharge from hospital, all accidents and occupational diseases from which has resulted permanent incapacity and, immediately by telegraph or by facsimile, those from which has resulted the death of the victim.

 

2.            The insurers shall also communicate to the Court, in writing and within a period of eight days, all cases of temporary incapacity of over 12 months.

 

 

Article 22

(Communication in case of death of the victim)

 

1.            The directors of hospitals, assistance centers and prisons shall communicate to the competent Court, within a period of 24 hours, the death resulting from an occupational accident or occupational disease of any employee admitted therein.

 

2.            Such obligation shall equally fall on any entity or person who is taking care of the victim.

 

 

Article 23

(Communication to the Court)

 

The communication to the Court of the occupational accident and occupational disease may also be made:

 

a)      by the victim, directly or through a third person;

b)      by the relatives of the victim;

c)      by any entity which has the right to receive the amount of compensation in respect of the accident or disease;

d)      by the authorities who have knowledge of the accident or occupational disease;

e)      by the director of the hospital, assistance center or prison where the victim is admitted;

f)    by the director of the Labour Department, through the Labour Inspection Office.

 

 

Article 24

(Communication to the Social Security Fund)

 

The employers, insurers, medical practitioners, and the directors of hospitals, assistance centers or prisons, where the victim has been admitted, shall communicate to the Social Security Fund, within a period of eight days from the date of knowledge of the final and unequivocal diagnosis of the disease, all the cases of any of the occupational respiratory diseases as contained in the Schedule annexed to this Ordinance.

 

 

Article 25

(Communication to the Labour Department)

 

Employers, or their representatives, shall communicate to the Labour Department all cases of occupational accidents or occupational diseases which have occurred in their respective place of work, within a period of 24 hours from the time of occurrence of such event or from the time the employers have knowledge of the occurrence of such event, irrespective of the consequences resulting therefrom.

 

Article 26

(Exhibits of occupational accidents and occupational diseases)

 

1.            The insurers shall remit to the Labour Department, during the months of January and July of each year, an exhibit showing all occupational accidents and occupational diseases under their responsibility, which have occurred during the preceding six months.

 

2.            The exhibit referred to in the preceding paragraph shall satisfy all the queries set out by the Labour Department.

 

 

CHAPTER V
COMPENSATION

 

 

Article 27

(Payments)

 

The right to compensation includes medical expenses and pecuniary payments.

 

 

 

 

SECTION I

Medical expenses

 

 

Article 28

(Meaning of medical expenses)

 

1.            These payments shall be adequate to restore the victim’s health, his working capacity and the recovery of the victim’s active life, including:

 

a)      general and specialized medical and surgical assistance, including necessary elements for the purpose of diagnosis and treatment;

b)      pharmaceutical assistance;

c)      nursing attendance;

d)      hospitalization;

e)      supply, renewal and repair of prosthesis and orthopaedic appliances;

f)    functional rehabilitation;

g)      the transportation referred to in Article 14.

 

2.            The medical expenses shall be subject to the following maximum limits:

 

a)      up to MOP 3,000,000.00 per employee who is a victim of occupational accident or occupational disease;

b)      up to MOP 270.00 per day per consultation outside the hospitals, which shall include the cost of the elements of diagnosis and treatment rendered during such consultations.(*)

 

3.            Where the medical expenses exceed the maximum limit laid down in the preceding paragraph 2 a), the victim shall have the right to medical surgical, pharmaceutical and hospital assistance permitted under the regulations governing the access to public health services.

4.            The limits laid down in the above paragraph 2 shall be revised biennially, in the month of October, taking into account the rate of inflation and the recommendations of the Labour Department and of “Autoridade Monetria e Cambial de Macau”.

 

(*) Amount amended by Executive Order nº 48/2006, November 20.

 

 

Article 29

(First aid)

 

The employer or the person in charge of the management or inspection of the works shall, as soon as the occurrence of an accident comes to his knowledge, render the necessary first aid to the victim, irrespective of any appreciation of legal conditions for compensation.

 

 

Article 30

(Submission for treatment)

 

1.            In case the injury does not result in incapacity and except when the medical practitioner determines to the contrary, the victim shall submit himself for treatment outside normal working hours.

 

2.            Treatment provided during normal working hours, under determination of the medical practitioner, shall not cause any loss of earnings.

 

 

Article 31

(Medical practitioner)

 

1.            The entity responsible has the right to appoint a medical practitioner for the victim, without prejudice to the provision of the following paragraph.

 

2.            The victim may choose any medical practitioner in the following situations:

 

a)      if the employer or his representatives is not at the place of the accident and there was urgency to render first aid;

b)      if the person responsible does not appoint a medical practitioner or while he does not appoint one;

c)      if the person responsible renounces the right to choose the medical practitioner;

d)      if the victim is discharged from hospital without being cured.

 

3.            For all legal purposes while no medical practitioner is appointed, shall be considered as such the medical practitioner who treats the victim.

 

4.            The provisions of the preceding paragraphs shall not impede the right nor the duty of the Public Administration to provide, on its own initiative or upon request, the treatment to the victim or to determine and promote the treatment and medical assistance which is technically and scientifically most adequate, with the costs resulting from such assistance to be borne by the person responsible for the accident or by the respective insurer.

 

 

Article 32

(Obligation to provide medical assistance)

 

It is not permissible for any medical practitioner to refuse to provide medical assistance to any victim of an accident when this is required by the person responsible or by the victim himself when he has the right to choose a medical practitioner.

 

 

Article 33

(Substitution of the medical practitioner)

 

During the hospitalization of the victim the medical practitioner shall be substituted for by the hospital’s physicians, however, the former has the right to follow the victim’s treatment according to internal regulations or in the absence or insufficiency of these regulations according to the determinations of the hospital director.

 

 

Article 34

(Choosing the surgeon)

 

1.            The victim may choose the surgeon to perform the operation where such operation is likely to endanger his life, so too in cases of complicated surgery.

 

2.            If the circumstances referred to in the preceding paragraph do exist, the attending medical practitioner shall give in writing a statement confirming the seriousness of the operation which may endanger the life of the victim.

 

 

Article 35

(Differences in medical determinations)

 

The victim or the person responsible have the right to disagree with the determinations of the medical practitioner or his legal substitute.

 

 

Article 36

(Arbitration)

 

1.            All differences arising out of Articles 31 paragraph 2 (d), 33 and 34 may be decided at a meeting of the physicians on the initiative of the victim, of the person responsible or of the attending medical practitioner or his legal substitute.

 

2.            If these differences are not resolved under the terms of the preceding paragraph, they shall be resolved as follows:

 

a)             in case of hospitalization of the victim, by the hospital director, or his substitute if he is the attending medical practitioner;

b)            in case the victim is not hospitalized, by a group of physicians consisting of a medical practitioner appointed by the victim and another medical practitioner appointed by the person responsible.

 

3.            The difference in the degree of temporary incapacity of the victim shall always be resolved according to the terms as stipulated in subparagraph (b) of the preceding paragraph.

 

4.            In case the group of physicians referred to in paragraph 2 (b) does not agree, the difference shall be resolved by the decision of a third medical practitioner appointed by the two physicians forming the group.

 

5.            The determinations of the medical practitioners referred to in paragraphs 2 and 4 shall be expressed in a written statement.

 

6.            The provision of the preceding paragraphs shall not impede the right of any of the interested parties or of the Labour Department to submit the case of the competent Court, nor the duty to communicate the cases of temporary incapacity for a period of over twelve months, permanent incapacity or death, under the terms of this law.

 

7.            In relation to the forensic report, any interested party or the Public Prosecutor’s Office shall have recourse to the scientific council of five members, constituted by the three medical practitioners referred to in paragraph 4, the forensic medical practitioner and a medical practitioner designated by the Department of Health Services.

 

8.            The parties involved shall pay the fees of the physicians they have appointed under paragraph 2 (b) and each party shall pay half of the fees of the third medical practitioner referred to in paragraph 4.

 

 

Article 37

(Records of examination and discharge from hospital)

 

1.            While commencing the victim’s treatment, the attending medical practitioner shall issue an examination record describing the diseases or injuries identified, the symptoms revealed and the medical examinations conducted, including a complete description of the injuries declared by the victim as having been caused by the accident.

 

2.            When the victim’s treatment has ended, the attending medical practitioner shall issue a certificate of discharge from hospital stating the cause for stopping treatment and the degree of incapacity of the victim, permanent or temporary, as well as the reasons for his conclusions.

 

3.            The examination report shall be issued in triplicate and in duplicate in the case of the discharge certificate, and the same shall be distributed as follows:

 

a)             One copy of each report to the victim;

b)            One copy of the examination report to the entity responsible;

c)             The remaining copies to be used for the purpose of notification of the accident to the Court or to be submitted to this entity as and when requested.

 

4.            The delivery of the report and the certificate to the victim and to the employer, referred to in a) and b) of the preceding paragraph shall be made within a maximum period of thirty days from the date of issue of the respective documents.

 

 

Article 38

(Obligation to provide information)

 

The entities responsible, the hospitals, the medical practitioners and any other public or private entities shall supply all information and documents required by the competent Court or by the Labour Department in respect of the accident or disease, namely medical examinations, diagnosis and treatment of the victim.

 

 

Article 39

(Acceptance of liability)

 

1.            The entities responsible shall sign a statement, if required, assuming liability for the payment of costs incurred with treatment or hospitalization of the victims.

 

2.            The treatment and hospitalization imposed by the seriousness of the victim’s condition cannot be denied, even where the said entities refuse to sign the statement assuming liability.

 

3.            The hospitals which, unjustifiably, refuse to comply with the obligations of emergency treatment or hospitalization, as referred to in the preceding paragraph, shall be held liable for the aggravation of the injuries of the victim as resulting from such refusal.

 

 

Article 40

(Category and class of hospitalization)

 

1.            The category and class of hospitalization of the victim of an accident shall be adjusted to the determinations of the attending medical practitioner.

 

2.            The entity responsible shall only be liable to pay, without prejudice to the previous paragraph, the minimum cost set out in the schedule of the hospital concerned for the category and class of hospitalization.

 

 

Article 41

(Prosthesis and orthopaedic appliances)

 

1.            The prosthesis and orthopaedic appliances shall be, for each case, those adequate for the purpose.

 

2.            The right to prosthesis and orthopaedic appliances applies to those for the visual or auditory correction or compensation and dental prosthesis.

 

3.            The competent authority for professional rehabilitation matters shall give its opinion in case of any differences regarding the nature, quality and adequacy of prosthesis and orthopaedic appliances, including the need for renewal or repair.

 

4.            In case of renewal or repair, the costs involved shall not exceed the costs of the new appliance similar to the damaged appliance or, in its absence, to a similar appliance which is technically adequate for the purpose.

 

5.            The cost of supply, renewal or repair of prosthesis and orthopaedic appliances shall not exceed, for any one occupational accident or occupational disease, and per employee, the following amounts:

 

a)             MOP 23,600.00 for the initial supply and fitting;(*)

b)            MOP 71,000.00 for repair or renewal and surgical fitting within a period of 10 years from the date of initial fitting.(*)

(*) Amounts amended by Executive Order nº 48/2006, November 20.

 

6.            The limits set out in the preceding paragraph shall be revised according to the terms of Article 28 paragraph 4.

 

 

Article 42

(Right of option for cash value of prosthesis and orthopaedic appliances)

 

1.            The injured employee may opt for an amount in cash equivalent to the cost of prosthesis and orthopaedic appliances indicated by the medical practitioner, if he intends to obtain more expensive appliances.

 

2.            In the case referred to in the preceding paragraph, the person responsible has the right to pay the said amount to the supplier only after verifying that the appliances have been fitted.

 

3.            The provision of the preceding paragraph shall not prejudice the right of the victim to compensation for any loss or damage suffered due to the delay in fitting the appliance, when, without justification or without the victim’s consent, the entity responsible delays the payment or the verification of the fitting as referred to in the preceding paragraph.

 

 

Article 43

(Renewal or repair of appliances damaged as a result of an accident)

 

The person responsible for the accident shall pay the necessary costs of renewal and repair of prosthesis and orthopaedic appliances which have been fitted to the injured employee and which are damaged due to an occupational accident.

 

 

Article 44

(Application to the Court)

 

1.            Where the person responsible refuses or delays to supply, renew or repair the prosthesis or orthopaedic appliances without due justification, the competent Court may, on application of the victim, notify the person responsible to deposit with the Court within 10 days the amount claimed.

 

2.            Where the person responsible fails to effect the deposit as referred to in the preceding paragraph, the Court shall order the payment of the respective deposit, by establishing a fixed amount in the conviction sentence.

 

3.            As a result of the charge ordered by the Court, the Court shall pay the supplier the costs or repairs of prosthesis or orthopaedic appliances after verifying that those appliances have been correctly fitted.

 

4.            The voluntary payment, or through Court action, of the amounts referred to in paragraph 1 does not prejudice the right of the victim to compensation for any loss or damage caused by the delay.

 

 

Article 45

(Loss of right to repair or renew the appliances)

 

The injured employee shall forfeit his right to repair or renew his prosthesis and orthopaedic appliances, if they had been damaged due to his serious and inexcusable fault, except when the period of normal use has exceeded the duration period of the appliance.

 

 

SECTION II
Payments in cash

 

SUBSECTION I

Regime

 

 

Article 46

(Contents)

 

The payment in cash shall correspond to:

 

a)             compensation for total or partial temporary incapacity for work;

b)            compensation for the reduction of working or earning capacity in case of permanent incapacity;

c)             compensation and funeral expenses in case of death.

 

 

Article 47

(Payments for incapacity)

 

1.            Where a reduction in the working or earning capacity of the employee results from an occupational accident or occupational disease, he shall be entitled to:

 

a)             for total temporary incapacity:

-         compensation equal to two-thirds of monthly earnings;

b)            for partial temporary incapacity:

-         compensation equal to two-thirds of the sustained reduction in the general earning capacity;

c)             for total permanent incapacity (100%), compensation as under:

 

1.      in the case of an employee under 25 years of age, an amount equal to 132 month’s earnings;

2.      in the case of an employee of 25 years of age or over and under 35 years of age, an amount equal to 120 months’ earnings;

3.      in the case of an employee of 35 years of age or over and under 45 years of age, an amount equal to 108 months’ earnings;

4.      in the case of an employee of 45 years of age or over and under 56 years of age, an amount equal to 96 months’ earnings;

5.      in the case of an employee of 56 years of age or over, an amount equal to 84 months’ earnings.

 

d)            for partial permanent incapacity (less than 100%):

-         compensation corresponding to the percentage of incapacity on the amount that would be payable if the preceding paragraph was applicable.

 

2.            The amounts of compensation referred to in the preceding paragraph 1 c) are subject to a minimum of MOP 187,500.00 and a maximum of MOP 625,000.00 and in respect of the compensation referred to in paragraph 1 d) to a maximum of MOP 625,000.00.(*)

 

3.            For the purpose of paragraph 1 c) and d) shall be considered:

 

a)      the victim’s age on the day of the accident, in case of occupational accident;

b)      the victim’s age on the date of the proper diagnosis of the disease, in case of occupational disease.

 

4.            To determine the degree of incapacity, the schedule of percentages annexed to this Ordinance shall be utilized.

 

5.            The earnings for the day of the accident shall be paid by the employer.

 

6.            The limits referred to in paragraph 2 shall be revised according to the terms of Article 28 paragraph 4.

 

(*) Amounts amended by Executive Order nº 48/2006, November 20.

 

 

Article 48

(Additional payments)

 

1.            Where a permanent incapacity, which results from the injury caused by accident or occupational disease, is of such a nature that the employee needs the constant attention of another person, he shall be entitled to an additional payment equivalent to 50% of the capital that would be payable under paragraph 1 c) or d) or paragraph 2 of the preceding Article.

 

2.            The additional payment referred to in the preceding paragraph shall be determined along with the principal payment.

 

 

Article 49

(Conversion of temporary incapacity into permanent incapacity)

 

1.            An employee who has been suffering from temporary incapacity for more than 24 months shall be considered as suffering from permanent incapacity and his attending medical practitioner shall, therefore, establish the respective degree of incapacity according to the percentage schedule annexed hereto.

 

2.            The degree of incapacity is subject to the ratification of the Court, and it may extend the period referred to in the preceding paragraph up to a further twelve months if proper medical treatment and rehabilitation have not been provided to the victim.

 

 

Article 50

(Payments in fatal cases)

 

1.            Where death results from an accident or occupational disease, the relatives of the victim are jointly entitled to a compensation of:

 

a)             in the case of an employee under 25 years of age, a lump sum equal to 120 months’ earnings;

b)            in the case of an employee of 25 years of age or over but under 35 years of age, a lump sum equal to 108 months’ earnings;

c)             in the case of an employee of 35 years of age or over but under 45 years of age, a lump sum equal to 96 months’ earnings;

d)            in the case of an employee of 45 years of age or over but under 56 years of age, a lump sum equal to 84 months’ earnings;

e)             in the case of an employee of 56 years of age or over, a lump sum equal to 72 months’ earnings;

 

2.            For the purpose of the preceding paragraph shall be considered relatives of the victim:

 

a)            spouse;

b)            ex-spouse with rights for alimony;

c)            children below 18 years of age (including unborn children);

d)            children up to 25 years of age who depend on the victim for their livelihood;

e)            children without age limitation for those suffering from mental or physical disability which renders them unable to work;

f)              ascendants of the victim, provided the latter has been contributing regularly for their livelihood.

3.            For the purposes of paragraph 1, the victim’s age shall be ascertained in accordance with the criteria established in Article 47 paragraph 3.

 

4.            The amounts of compensation referred to in paragraph 1 are limited to a minimum of MOP 150,000.00 and a maximum of MOP 500,000.00.(*)

 

1.                  5.            The amounts of compensation shall be divided as follows:

 

a)             60% for the spouse or ex-spouse with rights for alimony and the respective amount shall be shared equally by them, in case both are alive;

b)            25% for the children and this percentage shall be divided equally between them in the case of more than one;

c)             15% for the ascendants.

 

6.            If the deceased employee has neither children nor ascendants entitled to compensation under this Ordinance, the spouse will be entitled to the respective amount of compensation.

 

7.            If the deceased employee was single or widow and leaves children and ascendants entitled to compensation, the total amount shall be divided equally between such persons.

 

8.            If the deceased employee was single or widow and leaves no children or ascendants entitled to compensation, the total amount shall be payable to the Social Security Fund.

 

9.            The amount of compensation due to the children of the victim shall be deposited with and to the order of the competent Court, which will decide its disbursement.

 

10.        For the purposes of paragraph 1, the person who has lived with the victim as husband or wife, although not married, shall be considered as spouse under the provisions of Article 2020 of the Civil Code.

 

11.        The limits referred to in paragraph 4 shall be revised according to the terms of Article 28 paragraph 4.

 

(*) Amounts amended by Executive Order nº 48/2006, November 20.

 

 

Article 51

(Funeral expenses)

 

1.            The funeral expenses shall be equal to 30 days’ earnings, subject to a minimum of MOP 3,600.00 and a maximum of MOP 14,000.00 and shall be paid to the person who proves to have made these expenses.(*)

 

2.            In the case of removal of the corpse, the amounts referred to in the preceding paragraph shall be doubled.

 

3.            The limits referred to in the preceding paragraphs shall be revised according to the terms of Article 28 paragraph 4.

 

(*) Amounts amended by Executive Order nº 48/2006, November 20.

 

 

Article 52

(Method of payment of compensation for temporary incapacity)

 

1.            The amounts of compensation for total and partial temporary incapacity shall be payable only while the victim is undergoing treatment at a hospital as an out-patient or during functional rehabilitation.

2.            The amounts relating to the compensation referred to in the preceding paragraph shall be calculated and paid fortnightly.

 

 

Article 53

(Place of payment)

 

The payments shall always be made in the territory of Macau at the address of the person responsible.

 

 

SUBSECTION II

Earnings

 

 

Article 54

(Method of calculation)

 

1.            The amounts of compensation shall be calculated:

 

a)             on the employee’s earnings on the day of the accident, if this represents the earnings received normally by the victim;

b)            on the earnings of the year preceding the cessation of risk, or at the time of the final and unequivocal diagnosis of the disease, if this precedes the cessation of risk.

 

2.            For those employees receiving a weekly, monthly or annual fixed salary, the daily salary shall correspond to 1/7, 1/30 and 1/360 of that salary respectively.

 

3.            Where employees receive a salary based on a working period, for productivity or for quantity of work, the daily earnings shall be established, for purposes of this law, by taking the total of all earnings during the last three months and dividing by the number of days effectively worked during this period, or during a shorter period if the effective working period was a shorter duration.

 

4.            In the absence of the elements referred to in the preceding paragraph, the calculation shall be based on the lesser daily average attained during an equal period by any other employee of the same employer employed in the same grade and performing the same work as the victim.

 

5.            If there is no such employee referred to in the preceding paragraph meeting the said conditions, any employee working under similar circumstances for another employer and within the same activity shall be considered.

 

6.            Where the victim is employed as an apprentice or trainee, without remuneration, the amounts of compensation shall be based on the average earnings of an employee of the same employer or of any other similar employer for a similar activity and with the professional category corresponding to that of the victim.

 

7.            If the victim is under the age of 18 years, the amounts of compensation shall be based on the average earnings of an unqualified employee over 18 years of age, working for the same employer or for any other employer for a similar activity or on the current earnings of the victim, whichever is higher.

 

8.            The monthly earnings shall be equal to thirty times the daily earnings.

 

9.            For the purposes of this Article, the monthly earnings shall in no case be less than those established by means of company regulation, convention or applicable legislation.

 

 

CHAPTER VI
ADDITIONAL PROVISIONS

 

 

Article 55

(Occupation and dismissal during temporary incapacity)

 

1.            During the period of partial temporary incapacity, the employer is obliged to provide the employees who are victims of occupational accident or occupational disease with suitable work according to the condition of such employees.

 

2.            While in the state of partial temporary incapacity, the earnings of the employee shall correspond to the level of working capacity and shall be based on:

 

a)             the earnings on the day of the accident, in the case of occupational accident;

b)            the average daily earnings of the year preceding the date of the final and unequivocal diagnosis of the disease or of the cessation of exposure to the risk, in the case of occupational disease.

 

3.            The employer who unjustifiably dismisses from work any of his employees who is a victim of an occupational accident or occupational disease, while the injured employee sustains temporary incapacity, shall be liable to pay such employee a compensation equal to three months’ earnings, which shall not be less than MOP 10,000.00, without prejudice to other compensation payable under the Labour Law in force, namely for dismissal from work.

 

4.            The obligation to pay compensation, as referred to in the preceding paragraph, shall cease if the injured employee does not present himself for work during the period of 48 hours after he is considered clinically able for work.

 

 

Article 56

(Accidents caused by other employees or by third parties)

 

1.            Where the accident is caused by other employees or by third parties, the employer or the insurer who pays the indemnity has the right to be reimbursed in full the amount paid, and such liability shall fall on the person(s) causing the accident and/or on the victim to the extent of the compensation he may have received from such other employees or third parties.

 

2.            For the purpose of the preceding paragraph, the employer or the insurer may intervene as the principal claimant in the suit filed by the victim against the persons causing the accident, or compel the victim to reimburse the respective amount of the compensation paid by them, as the case may be.

 

3.            The employer or the insurer may also bring a lawsuit against those causing the accident, when the victim has not done so within a period of one year from the date of the accident, if such accident was caused out of fraud or serious fault.

 

4.            The employer or the insurer who has yet to pay the indemnity, in whole or in part, shall be free from any responsibility to the extent of the compensation received by the victim from the persons causing the accident.

 

5.            The employer or the insurer does not have right to claim reimbursement from the employees if the accident was caused without fraud or serious fault, but can exact from the victim the reimbursement of the indemnity paid to the extent of the compensation he may have received from such employees.

 

 

Article 57

(Accident caused by the employer or his representative)

 

1.            The provision of the preceding Article applies, with necessary adaptations, to cases wherein the person causing the accident is the employer or his representative.

 

2.            The insurer may bring a lawsuit against those causing the accident when the victim has not done so within a period of one year from the date of the accident, if such accident was caused out of malice or fraud.

 

 

Article 58

(Occupational accidents and traffic accidents)

 

1.            Where a traffic accident it simultaneously an occupational accident, the compensation shall be paid by the insurance company which has covered the employer’s liability under the terms of this Ordinance, and such insurer shall be subrogated in the rights of the victim in relation to the insurance company which has covered the motor vehicle responsible for the accident.

2.            Where the insurer of the motor vehicle causing the accident is liable to pay compensation, he may notify the insurer of the occupational accident to exercise the right referred to in the preceding paragraph, within a period of sixty days, after which period the motor vehicle insurer may pay the victim directly the compensation due.

 

3.            The victim, his employer and the insurer responsible for the employees’ compensation insurance shall intervene, after being duly notified by the competent Court, in the lawsuit against the insurer of the motor vehicle responsible for the accident.

 

4.            If the actions of the victim impede without justification the execution of the subrogation right referred to in paragraph 1, the victim shall be liable to repay the insurer of the occupational accident any aggravation in the expenses resulting therefrom.

 

5.            For the purposes of the preceding paragraphs, the obligations laid down for insurers shall equally apply, in case of absence of insurance, to those civilly liable for the traffic accident and to the employer of the victim.

 

 

Article 59

(Forfeiture and prescription)

 

1.            The right of action in respect of compensation established in this Ordinance shall lapse after two years:

 

a)             in case of occupational accident, from the date of the clinical cure or, in the case of death, from the day the death occurred;

b)            in case of occupational disease, from the date the final and unequivocal diagnosis of the disease is communicated to the victim, if there be no such communication or in case this be made in the year preceding the victim’s death, the period of two years shall be counted from the date of the victim’s death.

 

2.            The right to compensation determined by the Court shall lapse after a period of two years from the date of such order of the Court.

 

3.            The period of prescription shall commence from the time the beneficiaries have personal knowledge of the compensation so established.

 

4.            An executive action shall interrupt the period of prescription.

 

 

Article 60

(Null and void acts)

 

1.            Any acts which are in contravention to the rights and guarantees established in this Law, shall be void.

2.            Any acts and contracts which shall cause the rights established in this Ordinance to be renounced, shall be also void.

 

Article 61

(Special application of the right to compensation)

 

The credits arising from the right to compensation, as established in this Ordinance, are indefeasible, not negotiable and irrevocable and enjoy the same privileges pertaining to credits as assigned by the general law similar to the guaranteeing of the payments of remunerations, but with preference in relation to the latter in the legal classification.

 

 

CHAPTER VII

COVERAGE OF RISK

 

 

Article 62

(Transfer of liability)

 

1.            Employers are bound to transfer the liability to pay compensation under the terms of this Ordinance to insurers authorized to transact employees’ compensation insurance in the territory of Macau.

 

2.            The liability to pay compensation for occupational respiratory diseases, pneumatosis, as set out in the Schedule of Occupational Diseases, annexed to this law, shall pertain to the Social Security Fund.

 

 

Article 63

(Insurer’s liability)

 

1.            The compensation to be paid by the insurer shall be based on the earnings declared for the purpose of insurance.

 

2.            When the earnings referred to in the previous paragraph be less than the actual the employer shall bear the difference of the compensation, including the expenses under Article 28.

 

3.            If the number of employees covered by the insurance contract be less than the actual on the day of the accident or the date of the final and unequivocal diagnosis of the disease, the employer shall be required to prove that the victim is covered by the insurance contract.

 

4.            The alterations to the insurance contract, in respect of the earnings or the number of employees, shall be communicated by the employer to the insurer within the period mutually agreed upon, or in the absence of which, within a period of 30 days from the last date of the preceding half year.

 

5.            The alterations referred to in the preceding paragraph are covered by the insurance contract and the insurer shall have the right to adjust the insurance premium based on the new information received.

 

 

Article 64

(Acceptance and renewal of insurance contracts)

 

1.            The insurers authorized to transact employees’ compensation insurance shall only accept insurance contracts under the terms, conditions and special clauses of the Uniform Policy referred to in Article 72.

 

2.            When the activity or the profession is of a special nature and is not included in the employees’ compensation insurance tariff, or has an abnormal loss ratio, “Autoridade Monetria e Cambial de Macau” shall define, on a case by case basis, the conditions of acceptance and renewal of the respective insurance contract.

 

 

Article 65

(Refusal to accept insurance contracts)

 

1.            When the acceptance of insurance is refused by at least three insurers, the employer may request “Autoridade Monetria e Cambial de Macau” to define the special conditions of acceptance.

 

2.            The insurer selected by the employer or appointed by “Autoridade Monetria e Cambial de Macau”, in the cases referred to in the preceding paragraph, shall be obliged to accept the mentioned insurance under the conditions so defined.

 

3.            The results obtained from such insurance contracts shall be shared by the insurers authorized to carry on employees’ compensation insurance according to the rules established by “Autoridade Monetria e Cambial de Macau” by Notice, which shall define the method to determine the said results as well as the criteria for its distribution.

 

4.            It is not permissible for any insurance intermediary to intervene in the contracts entered into under the conditions established in this Article, nor shall any commission be payable on such contracts.

 

 

CHAPTER VIII

APPLICATION OF SANCTIONS

 

 

Article 66

(Penalties)

 

1.            Noncompliance with the provisions of the present law shall be punishable with the following penalties:

 

a)            from MOP 3,500.00 to MOP 17,500.00 for infringement of Article 7 paragraph 4 and Articles 29 and 39;

b)            from MOP 3,000.00 to MOP 15,000.00 to those who try to secure free medical treatment or hospitalization for a victim of occupational accident or occupational disease by declaring him to be poor, so as not to pay the respective charges;

c)            from MOP 2,500.00 to MOP 12,500.00 for infringement of Article 25;

d)            from MOP 2,000.00 to MOP 10,000.00 for infringement of Article 52 and paragraph 3 of Article 55;

e)            from MOP 1,000.00 to MOP 5,000.00 for each employee, for infringement of Article 62 paragraph 1;

f)              from MOP 1,500.00 to MOP 7,500.00 for violation of the provisions not covered in the preceding sub-paragraphs.

 

2.            The penalties cannot be converted into prison sentences.

 

 

Article 67

(Aggravation of penalty)

 

1.            The minimum and maximum limits of the penalty referred to in the preceding Article shall be doubled in the following cases:

 

a)             where the infringer uses falsification, deceit or other fraudulent means;

b)            where there is repeated failure to comply under the general Penal Code.

 

2.            The voluntary payments of penalties shall be taken into consideration in cases of repeated failure to comply.

 

 

Article 68

(Accumulation of responsibility)

 

The penalties established in this Ordinance shall not affect neither the civil responsibilities nor the criminal responsibility which other legal regulations may impose on the offenders.

 

 

Article 69

(Investigation)

 

1.            The Labour Department, through the Labour Inspection Office, is empowered to investigate the infringements referred to in this Ordinance.

 

2.            The process relating to infringements and the application of fines shall be governed by the provisions of the Labour Inspection Regulations, approved by Decree-Law 60/89/M of 18th September.

Article 70

(Treatment of penalties)

 

The penalties shall pertain to the Social Security Fund.

 

 

Article 71

(Prescription)

 

1.            The procedure against the violations of the provision of this Ordinance shall lapse if the same is not initiated within two years from the date on which the infringement was committed.

 

2.            The commencement of the preliminary notification process, which is confirmed under the terms of Article 11 of the Regulations referred to in Article 69 paragraph 2, shall interrupt the prescription of the penal action.

 

3.            The fines shall prescribe five years after the Court pronounces the condemnatory sentence.

 

 

CHAPTER IX

FINAL PROVISIONS

 

 

Article 72

(Uniform Policy)

 

A uniform employees’ compensation insurance policy, to be approved by Executive Order of the Governor, shall be adopted to transfer to the insurer the liabilities of the employer under the provisions of this Ordinance.

 

 

Article 73

(Tariff)

 

The tariff of insurance premiums and conditions for employees’ compensation insurance shall be established by Executive Order of the Governor.

 

 

Article 74

(Reversion to the Social Security Fund)

 

The amounts deposited to the order of the Labour Department, under the terms of Article 16 of the regulations referred to in Article 69 paragraph 2, shall revert to the Social Security Fund, when the right to receive such amounts has lapsed pursuant to the terms of Article 17 of the said regulations.

 

 

Article 75

(Revocatory provision)

 

1.            Decree-Law nº 78/85/M of 10th August is hereby revoked.

 

2.            All other legal provisions relating to occupational accidents and occupational diseases, which contradict the provision of this Ordinance, with the exception of those applicable to occupational accidents and occupational diseases of government employees, are also hereby revoked.

 

 

Article 76

(Effective date)

 

This decree-law shall come into effect on 1st September 1995.

 

 

 

©2016 Government of the Macao Special Administrative Region - Labour Affairs Bureau
Address: Avenida do Dr. Francisco Vieira Machado 221-279, Edifício Advance Plaza, Macau
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