The CCAC has released “Investigation report on the employment of workers through acquisition of services by the Cultural Affairs Bureau”, which revealed that the Cultural Affairs Bureau (ICM) had violated the law of open recruitment and central recruitment system, evaded the superior’s assessment and supervision by hiring a lot of workers through acquisition of services over recent years. In particular, the issues including not publicising job openings, lax screening and alleged violation of the recusal system were the worst.

During the process of investigation and handling of the complaint and report concerning the ICM, the CCAC found the ICM has been hiring a large number of workers illegally through acquisition of services in recent years. In order to clarify the facts, in April 2016, the Commissioner Against Commission made an order to conduct an investigation into the recruitment of personnel of the ICM, which lasted for almost a year.

In the past, some public departments were found to have employed workers through acquisition of services according to Decree Law no.122/84/M. However, with the CCAC and the Commission of Audit continuously pointing out the mistakes of such practice in their reports, recommendations and guidelines, most of the public departments have avoided hiring workers through acquisition of services in recent years.

During the investigation, however, the CCAC found that the ICM had been all along employing workers through acquisition of services. Moreover, the number of workers employed through such method even increased to as many as 112 in 2014, taking up almost one sixth of all its employees. Even in 2016, when the CCAC commenced the relevant investigative work, there were still 94 workers employed through such method.

All the reasons the ICM could give about its employment of workers through acquisition of services were their “heavy workloads”, “inadequate manpower” and the “time-consuming recruitment process”. Not only most subunits of the bureau recruited workers through the said method, the recruitment flowchart and the associated document templates were also uploaded to the intranet for reference. There were even special forms to record the attendance of such workers and for them to apply for annual leave. Arguably, the practice already became quite common, systematised and standardised.

The CCAC believes that the ICM’s employment of a number of workers through acquisition of services led to a string of problems, as follows:

1. Overstepping superior’s personnel management authority

With regard to the reasons why the workers were employed through acquisition of services, the leaders of the ICM said during the investigation that the massive increase in the workloads in recent years and the inadequate manpower made them unable to cope with a multitude of additional projects, not to mention that it took too long to hire workers through the central recruitment system and that the superior authority would not approve the exemption from initiating an open recruitment process. Nevertheless, according to the legal systems governing public servants of Macao, a department at the Bureau level does not have the power to hire workers on its own, as such power belongs to the Chief Executive or the relevant Secretary.

Only in duly justified cases, and with the authorisation of the Chief Executive or the relevant Secretary, a pubic department in urgent need of recruits due to special reasons may be exempted from initiating the open recruitment process to hire contractual workers – that is to say, any department at the Bureau level does not have the power to recruit personnel without first initiating an open recruitment process. In addition, only in duly justified cases, and with the authorisation of the Chief Executive or the relevant Secretary, the open recruitment process initiated to hire a contractual worker may only involve document review, which simply requires resume analysis and an interview (i.e. a knowledge examination is exempted). However, without the approval of exemption by the Secretary for Social Affairs and Culture, the ICM hired a number of workers through acquisition of services and by methods irrelevant to the required open recruitment process. Moreover, the selection of candidates by the ICM was only based on resume analyses and interviews. The knowledge examinations were exempted without the approval of the Secretary for Social Affairs and Culture. Without doubt, the ICM had overstepped the superior’s personnel management authority.

2. Evading the recruitment systems of the Macao SAR Government

With the coming into force of Law no. 14/2009 on Regime of Public Service Positions and the supplementary legislation, all public departments must initiate open recruitment processes when recruiting ordinary and special posts. Moreover, the recruitment of senior officers and assistant officers must be subject to the central recruitment system. When initiating an open recruitment process, public departments must publish the notices on the Official Gazette of the Macao SAR and at least two newspapers. To enter the public services, applicants must undergo and pass the open recruitment process that consists of a knowledge examination, an interview and resume analysis.

However, during investigation, the CCAC found that when recruiting workers through acquisition of services, the ICM failed to publicise to the society about the recruitment news and ask for job seeker information from the Public Administration and Civil Service Bureau (SAFP). Instead it passed the recruitment news to colleagues and friends or by word of mouth in specific areas. These acts were against the principle of openness in the recruitment procedures of public servants.

With regard to the selection of applicants, the ICM would neither conduct written tests nor other professional skill tests. Instead it just depended on resume analysis and interviews to confirm “appropriate workers”. However, such criteria for selection was in doubt. For example, a subunit of the ICM had recruited a worker who neither received engineering training nor had relevant work experiences to take charge of the supervision of facility maintenance and engineering work.

Another example was a subunit of the ICM had recruited a worker to “assist in handling the salary payments of personnel, inputting and preparing different account statements, inputting data and doing document filing work and handling word processing jobs”. However, the work experiences of the worker that were stated in the proposal were dormitory management and settlement of dispute in dormitories in a hotel of Macao. Such experiences were not relevant to the above administrative work.

The CCAC pointed out that when the ICM recruited workers through acquisition of services, its recruitment procedures were neither open nor transparent. Also, the recruitment criteria were neither clear nor regulated. Moreover, there were circumstances that the relatives of some leaders and chiefs were able to be recruited by the ICM through acquisition of services. Such acts were against the civil service recruitment policies of the Macao SAR Government that propose openness, fairness and justice.

3. Workers employed through acquisition of services enjoy certain advantages in the open recruitment

During the investigation, the CCAC found that in the recruitment of officer or assistant officer of the ICM through initiating open recruitment process, among the staff who were finally appointed, a considerable portion of them have worked in the ICM through acquisition of services. The ICM has recruited 60 2^ndgrade officer in various areas in 2014 and 2015 through open recruitment, among the final 60 candidates that were recruited, 22 of them have worked in the ICM through acquisition of services.

In 2011, the ICM initiated an open recruitment process to recruit 2^nd grade assistant officers. Among the 31 appointees, 13 of them used to be workers employed through acquisition of services; in 2012, open recruitment was conducted again for the recruitment of 2^nd grade assistant officers and three of the four appointees used to be workers employed through acquisition of services. Subsequently, the ICM applied to the supervisory body in December 2013 for an additional appointment of nine assistant officers based on the final assessment list of the aforementioned open recruitment, of which six of them were working in the ICM through acquisition of services.

The CCAC found that in the knowledge examination of the ICM, there are often practical questions relating to the operation of the department and such questions amounting to a relatively high percentage of scores. Therefore, those candidates with related working experience have a certain advantage; in the resume analysis stage, one of the criteria is the consideration whether the candidate has working experience in the relevant area as well.

During the random inspection of the files of open recruitments of the ICM, the CCAC found occasion that the jury panel set the questions of the knowledge examination after knowing the resume and identity of the candidates. In addition, the scoring criteria for interview and resume analysis were formulated after calculating the results of knowledge examination of the candidates. Such practice is not consistent with the usual procedures for open recruitments of the public sector.

4. Create false front to cover up the actual labour employment relationship

The “service provision agreement” entered between the ICM and the new recruits specified such content as job duties, working hours, and methods for calculating absence leave. Whether it be the form or the content, these agreements were just like typical employment contracts. Furthermore, these recruits were in fact no different from the staff of the ICM – they had to follow the starting and finishing times of work applicable to the ICM staff, obey orders of their superiors, complete the assigned tasks and receive the corresponding remuneration.

In order to package the employment of workers through acquisition of services as procurement of services described in Decree Law No. 122/84/M, so as to cover up the actual labour employment relationship, the ICM will require the person to be hired to submit a “quotation” for procurement of services, in which the information of the content of “service provided” and “service fee” is exactly the same as the content in the employment proposal; another example is that the ICM will deliberately arrange the department heads to manually record the arrival and leaving time of the workers through acquisition of services, instead of recording their attendance (i.e. “punching of attendance card”) together with the formal staff.

What is more absurd is that in order not to sign long-term agreements with many typical labour terms with the workers, the ICM, in general, entered into so-called “work agreements” with the workers employed through acquisition of services when the “service provision agreements” had been signed for one year and requested them to submit an application of commencement of work as freelance worker to the Financial Services Bureau by filling in and submitting salaries tax form M1.

The “work agreements” signed between the ICM and these workers neither indicated any terms about the working hours and the quantity and methods of the works nor mentioned anything about the attendance system, giving a false impression that they were “freelance workers” providing services instead of full-time staff members. Many of the terms in the “work agreements” were too simple, making the supervision difficult.

For example, in October 2014, the ICM hired a person for “work on the scores” in an orchestra and the monthly salary was MOP15,000. However, starting from July 2015, no change was made in the terms about the duty in the “service provision agreement”, but the salary was adjusted to MOP27,650 per month and there was no other documents indicating the reason or basis for the adjustment. Such practice would definitely make it difficult for the supervisory bodies to oversee the legality and rationality of the relevant acts.

5. Evading the legal regime of declaration of public servants’ assets and interests

Law no. 11/2003 stipulates that holders of public positions and people linked to the public departments with subordinate relation are obliged to submit declarations of their assets and interests. The workers who had signed the “service provision contracts” with the ICM had submitted declaration of assets and interests. However, after they signed the “work agreements”, they did not submit the declarations to the CCAC again with the excuse that there was no subordinate relation between the ICM and them.

The workers employed by the ICM under “work agreement” were distributed among many subordinate departments, including those in charge of the management and financial and administrative operation of the ICM, such as the Office of the Director and the Department of Organisation and Management of Administrative Finances, and those responsible for planning and operation of building projects, performances and exhibitions, such as the Department of Cultural Heritage, the Department of Cultural Events and the Department for Promoting Cultural and Creative Industries.

The CCAC considered that there was no obvious difference between these workers and the full-time staff members of the ICM in the aspect of performance of duties. Therefore, they had access to and even had the chance to take part in the planning or administrative assessment procedures of the projects and events involving significant economic interests. However, they did not fulfil the obligation to declare their assets and interests. This would not only open a loophole in the supervision of integrity of the public service but also bring about risks of corruption.

The CCAC pointed out in the report that in addition to the issues mentioned above, the following two issues also deserve attention of the ICM and its supervisory body:

1. Fairness of public service personnel recruitment procedures shall be ensured

The ICM employed workers through the dissemination of the news about the employment of workers through acquisition of services among the “insiders” or among relatives and friends, which resulted in the lack of elimination and competition of knowledge examinations in the selection process. Some of whom even made use of the working experiences in the ICM and enjoyed the advantage of “proximity” in the open recruitment to become public servants, which will inevitably cause people to question the ICM of its impartiality in the employment process of workers through acquisition of services.

The CCAC pointed out in the report that in the recruitment process, the public sector must comply with the requirements of the Macao SAR Government and abide by strictly the provisions of the laws concerning open recruitment, central recruitment and standardised recruitment to ensure that the recruitment procedures are open, fair and impartial. The legal requirements concerning recusal should be observed strictly in order to safeguard the equal opportunities that Macao residents can enjoy in acquiring public posts.

1. The policy of “streamlining administration” promoted by the Macao SAR Government should strictly be implemented

Over recent years, the ICM has been organising more and more activities. If the existing manpower of the ICM was indeed unable to handle additional work, it is understandable that the ICM appropriately recruited more workers. However, the ICM should conduct the recruitment process according to the statutory procedures and have corresponding budget. The ICM used the budget of the Cultural Fund which was originally allocated for holding cultural activities to recruit a large number of workers through acquisition of services. Moreover, the leaders failed to set the upper limit of the number of recruited workers and the fees of the services. Such acts did not conform to the due requirement of public finance management.

The CCAC stressed that the spirit that the public departments work proactively to achieve good results should be recognised. However, the government should consider the cost and adhere to “keep the expenditure within the limits of revenues” and “manage its finance in a prudent manner”. When public departments strive for achievement, they should not disregard the overall recruitment plan of the Macao SAR Government. Moreover, they should not just think about their benefits and disregard the overall situation. Otherwise, there will be a danger that the size of the civil service and the expenses of public finance of the Macao SAR Government will be out of control.

The full text of the report is downloadable from the CCAC’s website.