Comments adopted by the CEACR: Malaysia - Sarawak

ADOPTED_BY_THE_CEACR_IN 2022

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Article 2 of the Convention. Insertion of labour clauses in public contracts. In its previous comments, initially made in 2013, the Committee requested the Government to indicate the measures it intended to take to bring its national legislation into full conformity with the requirements of the Convention. The Government reports that the provisions of the Convention are given effect through the general terms of contracts issued by the Public Works Department, which is the main implementer of public projects in Sarawak. It adds that the contracts specify, among other things, the engagement of workers and labour, the removal of workers and other personnel, days and hours of work and insurance for workers. The Government further indicates that requirements governing the payment of wages, hours of work and other working conditions are provided under the Labour Ordinance of Sarawak (Amendment) Act 2005. The Committee notes that the Labour Ordinance does not address public contracts and that the Government does not provide specific information regarding the manner in which Article 2 of the Convention is given effect. In this respect, the Committee draws the Government’s attention to paragraph 45 of the 2008 General Survey on labour clauses in public contracts, in which it pointed out that the essential purpose of the Convention is to ensure that workers employed under public contracts shall enjoy the same conditions as workers whose conditions of employment are fixed not only by national legislation but also by collective agreements or arbitration awards, and that in many cases the provisions of the national legislation respecting wages, hours of work and other conditions of employment provide merely for minimum standards which may be exceeded by collective agreements. Therefore, the Committee emphasized that the mere fact of the national legislation being applicable to all workers does not release the States which have ratified the Convention from the obligation to take the necessary steps to ensure that public contracts contain the labour clauses specified in Article 2 of the Convention. Recalling that it has been commenting for a number of years on the Government’s failure to fully implement the core requirements of the Convention, the Committee reiterates its request that the Government clarify whether the public procurement legislation currently in force addresses in any manner the question of labour clauses in public contract. The Committee urges the Government to take all necessary measures without delay to bring its national legislation into full conformity with Article 2 of the Convention. It further requests the Government to keep the Office informed of progress made and recalls that the Government may avail itself of the technical assistance of the ILO in this regard, should it wish to do so.

Application of the Convention. Part V of the report form. The Committee requests the Government to provide a detailed report with full particulars on each of the provisions of the Convention, to enable the Office to assess the extent to which the provisions of the Convention are applied in law and practice, and to transmit copies of any relevant bidding documents currently in use.

ADOPTED_BY_THE_CEACR_IN 2021

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Articles 2 and 5 of the Convention. Weekly rest entitlement. Uniformity of the weekly rest period. Compensatory rest. In its previous comment, the Committee noted with concern the absence of progress towards full application of Article 2 of the Convention, given that the restrictive definition of the term “employee” in the Sarawak Labour Ordinance, leaves certain categories of workers without the benefit of a weekly rest day of one whole day provided for in section 105B (1) of the Sarawak Labour Ordinance. It also noted the lack of progress in the application of Article 5, as section 105C of the Sarawak Labour Ordinance only provides for monetary compensation but not for compensatory rest for workers performing work on their weekly rest day. The Committee notes with concern that on both issues the Government, in its report, limits itself to indicating that it will pursue a discussion with the State Government of Sarawak to ensure that weekly rest entitlement is applicable to all workers employed in any industrial undertaking and that compensatory rest is accorded to workers performing work on their weekly rest day. In this context, the Committee once again requests the Government to take the necessary measures in the near future to ensure that: (i) the whole of the staff employed in industrial undertakings would be entitled to weekly rest; (ii) the period of weekly rest would, wherever possible, be granted simultaneously to the whole of the staff of each undertaking; (iii) the weekly rest would, wherever possible, be fixed so as to coincide with the days already established by the traditions or customs of the country or district; and (iv) compensatory rest is granted to workers who have to work during their weekly rest day, irrespective of any monetary compensation. The Committee also requests the Government to provide information on any progress made in this respect. The Committee reminds the Government of the possibility to avail itself of ILO technical assistance in this regard.

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Article 1 of the Convention. Extending the effective coverage of the Employees Social Security Scheme to foreign workers and transition measures . (i) Completing the transition towards full implementation. In its previous comment, the Committee noted, from the report of the Direct Contacts Missions (DCM) that took place in October 2019, that the implementation of the extension of coverage of foreign workers for work-related accidents and diseases compensation under the Employees’ Social Security Scheme (ESSS) and the transition from the Workers’ Compensation Scheme (WCS) were under way. The Committee noted, essentially, that all new foreign workers entering Malaysia with valid documents were being registered with the Social Security Organisation (SOCSO) for coverage under the ESSS since 1 January 2019, and that all foreign workers already in Malaysia were due to have transitioned from the WCS to the ESSS and registered with SOCSO, which administers the ESSS, by 31 December 2019.

The Committee takes note of the information provided by the Government in its report concerning the progress achieved and the means taken to increase the number of foreign workers registered under the ESSS. In this regard, the Government indicates that information sharing and awareness raising sessions have been held with stakeholders (i.e. employers, employers’ organization, workers’ organization, private employment agencies and Embassies/High Commissions) across Malaysia. The Government also reports the collaboration of the Immigration Department to identify, through data integration, the employers who have not registered their foreign workers with SOCSO and notify them of their obligation to do so. In addition, the registration of foreign workers with SOCSO has become one of the prerequisites for renewal of their work permit by the Immigration Department, since 1 July 2020. As a result, the Government indicates that, as of 14 August 2021, 1,868,770 foreign workers and 95,556 employers (employing foreign workers) had been registered with SOCSO.

The Committee takes due note of the measures taken to increase the registration of foreign workers with SOCSO, with a view to achieving effective coverage under the ESSS and requests the Government to continue providing information on progress made in this regard, and on the number of foreign workers registered with SOCSO, out of the total number of foreign workers in Malaysia. The Committee further requests the Government to provide information on the sanctions imposed on employers who fail to register their foreign workers with SOCSO after receiving notification of their obligation in this regard.

(ii) Addressing challenges to effective implementation. The Committee previously noted the challenges attached to the effective coverage of foreign workers for work-related injury and requested the Government to take all measures required to ensure that the legal framework for the protection of foreign workers in case of work-related injury translated into regular practice.

It also requested the Government to continue to work on the identification of dependants of workers who suffered work-related injuries, including those who were born in Malaysia following the entry on the territory of the foreign workers.

The Committee notes the measures reported by the Government to address this particular issue. First, the Government indicates that information on the foreign workers’ dependents must be provided at the time of registration with SOCSO, via the “Foreign Workers’ Dependants” Declaration Form. Second, the Government has engaged with relevant foreign Government entities to find means of identifying and contacting the dependants of foreign workers, through, for example, the Embassies/High Commissions in Malaysia and the social security agencies of migrant sending countries. Lastly, the Government reports that Memorandum of Collaboration (MOCs) have been concluded with the social security agencies of some of the main countries of origin of foreign workers and that the expansion of MOCs to other source countries is in progress, with a view to improve the benefit delivery process to dependants in the main source countries. The Committee requests the Government to continue providing information on any further measures taken with a view to ensuring that work-related injury compensation, in practice, is paid to the dependent children of deceased foreign workers, in Malaysia and abroad, to give full effect to Article 1 of the Convention.

Furthermore, the Committee previously noted that ensuring the ESSS effectiveness in covering foreign workers in practice was another important challenge, and that particular attention should be paid to small and medium enterprises and micro-enterprises, including in more remote geographical areas, who may require assistance in this regard. In this regard, the Committee noted that language was reported to often be a serious impediment for workers to understand the extent of their rights and obligations, and that efforts were needed to make the procedure more simple and leaner. On this last point, the Committee notes that the Government has undertaken the translation of the ‘Employment Injury Scheme for Foreign Workers’ brochures in the languages of the main countries of origin of foreign workers.

The Committee requests the Government to pursue its efforts to address the challenges linked to the operationalization and the effective implementation of the extension of the ESS Act provisions concerning work-related injury compensation to foreign workers and to provide information on further measures taken or envisaged in this regard.

(iii) Removal of discriminatory practices in relation to workplace injury. In its previous comment, the Committee noted that certain labour contractual practices might lead to a loss of work permit and thus a possible loss of the legal status necessary to be entitled to employment-related injury benefits. Some of the practices referred to included, notably: the change of employer, despite the work permit being issued for a specific employer; the abrupt contractual termination (including while benefits were ongoing); and the retention of documents necessary to claim work-related injury benefits. The Committee observed that the application of immigration laws and policies could lead, in some cases, to inequality of treatment for foreign workers as regards work-related injury protection, and hoped that the Government, in consultation with social partners would seek constructive solutions to eliminate such discrimination and ensure (i) the maintenance of the protection of foreign workers, (ii) the provision of medical care and (iii) the payment of benefits for work-related injury despite changes in their employment or immigration status.

In the absence of any progress reported by the Government on this issue, the Committee once again requests the Government to provide information on measures taken with a view to eliminating the discriminatory practices referred to above and ensuring the maintenance of work-related benefits provided to injured workers, regardless of their employment and immigration status.

In addition, the Committee once again requests the Government to consider extending the coverage of ESSS for work-related injury to all foreign workers who are nationals of any other Member which has ratified the Convention, irrespective of their status, with a view to giving full effect, in practice, to Article 1 of the Convention and requests the Government to provide information on any measures taken or envisaged in this regard.

(iv) Access of foreign workers to medical care in case of work-related injury. In its previous comment, the Committee requested the Government to provide information on the measures envisaged or taken with a view to ensuring that the required medical care was provided to foreign workers injured in the course of their work for as long as needed, irrespective of status, and that it was not impeded by the termination of their contract or the expiration of their work permit.

The Committee notes the indication by the Government that, under the ESSS, foreign workers who are still employed and suffer from employment injuries or occupational diseases may receive free medical treatment at SOCSO’s panel clinic or Government clinic/hospital, or submit a claim for the reimbursement of the costs of medical treatment to SOCSO.

The Committee requests the Government to indicate the measures in place to ensure that victims of work-related accidents or occupational diseases continue to be provided with the medical care and treatment they require for as long as needed, irrespective of changes in their employment or immigration status. In the absence of any provision to this effect, the Committee requests the Government to take the necessary measures to ensure that the entitlement of work-related injury victims to medical care is not impeded by the termination of their contract or the expiration of their work permit.

The Committee also requested the Government to provide information on measures taken or envisaged to ensure that foreign workers were not deterred from seeking necessary medical care, as well as to address practical barriers to effective access, including language and practice related to their conditions of employment. The Committee hopes that the ongoing translation of the ‘Employment Injury Scheme for Foreign Workers’ brochures in the language of migrant sending countries, referred to above, addresses this issue and requests the Government to provide information on any other measures taken to ensure the effective access of foreign workers to medical care in case of work-related injury, in application of Article 1 of the Convention.

(v) Ensuring the sustainability of work-related injury benefits under the ESSS, considering the extension to foreign workers. It its previous comment, the Committee expressed the hope that the Government would continue to carry out regular actuarial valuations with the view to assess the financial sustainability of work-related injury benefits under the ESSS. The Committee notes with interest that, according to the information provided by the Government, actuarial valuations are carried out regularly to assess the financial sustainability of the ESS scheme. The Committee further observes that an actuarial valuation of the employment-injury scheme and general invalidity scheme is currently being conducted, with the technical assistance of the ILO. The Committee requests the Government to provide information on the findings and recommendations of this actuarial valuation, when finalized, and a copy of it.

Article 2. Special arrangements with contributing countries to ensure the payment of compensation abroad. In its previous comment, the Committee noted the advances made by the Government towards the conclusion of arrangements with the member States from which foreign workers mainly originated to ensure the payment of employment injury benefits abroad, including the conclusion of one Memorandum of Cooperation (MoC) with Indonesia. With a view to strengthening the application in practice of the protection afforded to foreign workers under the ESS scheme, the Committee stressed the need for documents related to the hiring of foreign workers (model contracts of engagement, standing operations procedures, etc.) to be transparent, specific as to the process and conditions for entitlement to work-related injury benefits and to be drafted in a language that could be understood by foreign workers,

The Committee notes with interest that, in reply to its request for information on the conclusion of further agreements with other member States which have ratified the Convention, the Government indicates that 3 additional MoCs had been signed as of August 2021, with Nepal, Pakistan and Myanmar. The Government also indicates that the translation of the ‘Employment Injury Scheme For Foreign Workers’ brochures in the source country’s language is on-going, in collaboration with the social security agencies from the source country and Embassies/High Commissions. The Committee encourages the Government to pursue its efforts to conclude additional agreements with the countries of origin of foreign workers, and in particular with those who have ratified the Convention, and requests the Government to supply copies of the agreements concluded so far.

The Committee also requests the Government to supply a copy of the “Employment Injury Scheme For Foreign Workers” and to indicate whether other documents relating to the hiring of foreign workers, such as model contracts of engagement, and standing operations procedures also contain information on the rights, entitlements and conditions relating to employment injury protection, in the main languages of foreign workers.

Finally, the Committee invited the Government to consider means of strengthening tripartite consultations and participation in the process leading to the conclusion of agreements with source countries, and requested the Government to provide information on measures taken to such effect. The Committee takes note of the Government’s indication that it continues to engage with MEF and MTUC through multiple platforms, some of which is institutionalized such as the National Labour Advisory Council, National OSH Council, National Wage Consultative Council. The Committee takes due note of this information.

Article 4. Mutual assistance in the application of the Convention. The Committee welcomes the statement by the Government of its continuous engagement with the ILO in the framework of Malaysia’s Decent Work Country Programme. Noting that social protection is among the priorities identified for the upcoming phase of implementation, the Committee hopes that the actions planned will aim, amongst others, at ensuring the application of the Convention in practice and requests the Government to provide information in this regard.

The Committee reminds the Government of the possibility to avail itself of the technical assistance of the ILO to further the application of the Convention.

[The Government is asked to reply in full to the present comments in 2023.]