Comments adopted by the CEACR: Malaysia - Sabah

ADOPTED_BY_THE_CEACR_IN 2020

C094 - CMNT_TITLE

Article 2 of the Convention. Insertion of labour clauses in public contracts. In its previous comments, the Committee requested the Government to take the necessary measures to ensure the full application of the Convention, both in law and in practice. The Government reports that, although section 121 of the Sabah Labour Ordinance is no longer in force, all public contracts under the Sabah State Government nevertheless contain a specific clause on labour. The Government further indicates that the standard form of contract to be signed by the public authority and the selected contractor is based on section 23 of the Act on the Employment of Workmen, which contains provisions on days and hours of working, maintenance of wage ledgers and timesheets, defaults in payment of wages, dismissal of workmen and requires compliance with relevant national labour legislation. The Committee notes that the standard form of contracts (available online) to which the Government refers, such as the PWD form 203, the PWD 203A, or the PWD FORM 203N (Revised 2007) are pre-prepared contracts that contain labour clauses and provide a basic framework for the rights, obligations and duties of the contracting parties for the public construction sector. It further notes that the insertion of labour clauses in the standard form of contracts is carried out in the absence of specific national legislation or regulations that call for their use in all public contracts. In this respect, the Committee recalls that Article 2 of the Convention provides for the inclusion of labour clauses in all public contracts covered by the scope of Article 1 – drawn up after consultation of the employers’ and workers’ organizations – ensuring to the workers concerned conditions of remuneration and other conditions of labour which are not less favourable than those established by national laws or regulations, collective agreements or arbitration awards for work of the same character in the same sector. The Committee invites the Government to consider the possibility of adopting specific measures (either through enactment of specific legislation or by means of administrative instructions or circulars) for extending the obligation to include the labour clauses currently in use for the construction sector to all public contracts to which the Convention applies (whether for construction works, manufacture of goods or supply of services). The Committee further requests the Government to indicate the manner in which it is ensured that labour clauses of the type specified in Article 2 of the Convention ensure to the workers of contractors or subcontractors payment of wages and other working conditions not less favourable than those established for work of the same character in the same area by collective agreement, arbitration award or national laws or regulations.

Application of the Convention in practice. Labour inspection. The Committee requests the Government to provide information on the manner in which the Convention is applied, including statistics on the number of inspections conducted, the number and type of infractions detected and the sanctions applied.

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Article 6(1)(a) of the Convention. No less favourable treatment. Foreign worker levy. In its previous comments, the Committee had noted that in several sectors, an annual foreign worker levy was to be paid to the Immigration Department and that there was an ambiguity as to whether this levy could be deducted from the workers’ wage. The Committee notes that in its report, the Government indicates that: (1) on 1 January 2018, a policy was introduced to give effect to the Government’s intention that all levies imposed on the hiring of foreign workers shall be borne by employers; and (2) a Steering Committee on the Multi-tier Levy was established to examine the impact of the levy system. Recalling that the deduction of levies from the wages of foreign workers may result in unfavourable treatment of these workers as compared to nationals, contrary to Article 6(1)(a) of the Convention, the Committee asks the Government to indicate what is: (i) the current legal situation in light of the new policy introduced in 2018 and the expected results from these changes (ii) the exact role of the newly established Steering Committee on the Multi-tier Levy and how it relates to this intention; and (iii) the outcome of the examination conducted by the Steering Committee on the deduction of the levies.

Article 6(1)(b). No less favourable treatment. Social security benefits. In its previous comments, the Committee urged the Government to adopt measures to end the differences in treatment between nationals and foreign workers with respect to the payment of social security benefits, and in particular with regard to compensations in cases of industrial injuries. In this regard, the Committee notes the conclusions adopted in 2018 by the Committee on the Application of Standards (CAS) of the International Labour Conference on the application of the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19), by Malaysia Peninsula and Sarawak. The Committee notes with satisfaction the information provided by the Government that foreign workers are now covered under the Employees’ Social Security Act.

The Committee is raising other matters in a direct request addressed directly to the Government.

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Malaysia – Sabah (ratification: 1964)

Article 1(a) of the Convention. Information on migration flows. The Committee takes note of the statistical information provided by the Government in its report on labour migration flows. It notes in particular that the large majority of foreign workers in 2018 were nationals of Indonesia and the Philippines (137,452 out of the 139,025 workers who applied for a new permit or the renewal of their permit) and that most of them worked in the agricultural sector (95,832 workers).

Article 1(c). Special agreements. In its last comment, the Committee requested the Government to provide information on the bilateral agreements concluded with other Members on labour migration. In its report, the Government indicates that the existing bilateral agreements include specific clauses on confidentiality, restricting the possibility to disclose their content. In this regard, the Committee recalls that Article 1(c) requires to make these agreements available on request to the International Labour Office and to other Members. The Committee also refers to the ILO General Principles and Operational Guidelines for Fair Recruitment and Definition of Recruitment Fees and Related Costs inviting Members to make the international agreements on labour migration publicly available. Therefore, the Committee requests the Government to communicate samples of the existing bilateral agreements on international labour migration to the Office and invites the Government to consider making these agreements publicly available.

Articles 2 and 4. Information and assistance to migrant workers. In its last comment, the Committee requested the Government to communicate on the specific measures adopted to provide information to migrant workers in Sabah on their rights in relation to employment. According to the Government, the Labour Department has taken a number of measures to raise awareness and disseminate information to all workers, through dialogue and engagement with stakeholders, and that conducted interviews in the context of the labour inspections. While taking note of this information, the Committee requests the Government to provide detailed information on the activities of the Labour Department that aim specifically at raising awareness and providing information on labour rights in sectors that employ a large number of migrant workers, such as the agricultural sector.

Article 3. Misleading propaganda. The Committee previously requested the Government to inform on the measures adopted to prevent that migrant workers coming into Sabah be subjected to erroneous information from intermediaries. In this regard, the Government indicates that the adverse impact of irregular migration and the importance of proper channels for regular migration are being discussed in the context of the Sabah Labour Conference (KONPENS) that is held twice a year with the participation of Government agencies, and workers’ and employers’ representatives, and in the context of smaller programmes such as dialogue sessions and engagements with relevant stakeholders. Noting this information, the Committee requests the Government to provide detailed information on the supervision of private employment agencies (including on licencing or accreditation procedures and any inspections to which they may be liable), and also on penalties imposed when these agencies, other intermediaries or employers disseminate misleading information to migrant workers.

Article 6. No less favourable treatment. Complaint mechanisms. In its last comment, the Committee requested the Government to provide information on the complaint mechanisms available to migrant workers who are subject to less favourable treatments, referring in particular to section 118B of the Sabah Labour Ordinance that prohibit discrimination against non-residents. The Committee notes the indications by the Government that: (1) foreign workers, like nationals, can file complaints under Chapter II A of the Sabah Labour Ordinance and that such complaints are investigated within 24 hours by a special enforcement team; (2) foreign workers involved in litigations may also apply for special permits to the Immigration Department of Malaysia to remain in the country while waiting for the outcome of their case; (3) the Sabah Labour Department assists them by providing letters confirming that their cases are pending before the court; and (4) no cases on discrimination have been reported to the Department of Labour. In this regard, the Committee recalls that the absence of complaints on discrimination submitted to the Department of Labour may indicate a fear of reprisals or negative consequences for the workers concerned. The Committee requests the Government to provide detailed information on: (i) the activities conducted to raise awareness on the existing complaint mechanisms; (ii) the number of special permits issued to migrant workers who have filed complaints while their cases are pending; (iii) the number of cases detected or reported to the Department of Labour or any other authorities on the less favourable treatment of migrant workers than nationals, in relation with matter covered by Article 6 of the Convention; and (iv) information on the outcome of these cases.

Foreign domestic workers. The Committee recalls that domestic workers are excluded from the scope of application of the Minimum Wage Order of 2012 and that, in its last comment, it requested the Government to indicate the measures adopted to ensure that foreign domestic workers are not treated less favourably than nationals with regard to their working conditions. The Government states that due to high levels of informality in this sector, the collection of relevant data is particularly challenging and that the comparison of earnings between national and foreign domestic workers is not available; and that periodic meetings are organized with the embassies of the sending countries to inform the authorities on changes in policy and legislation regarding domestic workers. The Committee requests the Government to adopt effective measures to ensure that foreign domestic workers are not treated less favourably than nationals with respect to matters enumerated under Article 6 (such as remuneration, accommodation, collective bargaining, social security, legal proceedings, etc.). Furthermore, noting that domestic workers are again excluded from the scope of application of the new Minimum Wage Order, adopted in 2020, the Committee refers the Government to its comment on the application of the Equal Remuneration Convention, 1951 (No. 100), by Malaysia.

Comments adopted by the CEACR: Malaysia - Sabah

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ADOPTED_BY_THE_CEACR_IN 2020

C094 - CMNT_TITLE

C097 - CMNT_TITLE

C097 - CMNT_TITLE