Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report indicating that section 35 of the Employment Act of 1955 of Peninsular Malaysia as well as sections 78(2) of the Labour Ordinance (Cap. 67) of 1949, Sabah, and 79(2) of the Labour Ordinance (Cap. 76) of 1966, Sarawak, continue to prohibit the employment of women on underground work in compliance with the provisions of the Convention. The Government adds that, while there are neither mining activities nor underground work available for women in Peninsular Malaysia, the mining industry in Sabah is a marginally small sector with the performance of most underground work being largely dominated by male workers.

The Committee takes this opportunity to recall that, based on the conclusions and proposals of the Working Party on Policy regarding the Revision of Standards, the ILO Governing Body has decided to invite the States parties to Convention No. 45 to contemplate ratifying the recent Safety and Health in Mines Convention, 1995 (No. 176), and possibly denouncing Convention No. 45 (see GB.283/LILS/WP/PRS/1/2, paragraph 13). Contrary to the old approach based on the outright prohibition of underground work for all female workers, modern standards focus on risk assessment and risk management and provide for sufficient preventive and protective measures for mineworkers, irrespective of gender, whether employed in surface or underground sites. As the Committee has noted in its General Survey of 2001 on night work of women in industry in relation to Conventions Nos. 4, 41 and 89, "the question of devising measures that aim at protecting women generally because of their gender (as distinct from those aimed at protecting women’s reproductive and infant nursing roles) has always been and continues to be controversial" (paragraph 186).

In the light of the foregoing observations, and also considering that the general trend worldwide is to provide protection for women in a fashion that does not infringe their rights to equality of opportunity and treatment, the Committee invites the Government to consider the possibility of ratifying the Safety and Health in Mines Convention, 1995 (No. 176), which shifts the emphasis from a specific category of workers to the safety and health protection of all mineworkers, while denouncing Convention No. 45. In this respect, the Committee recalls that, according to established practice, the Convention will be next open to denunciation during a one-year period from 30 May 2007 to 30 May 2008. The Committee requests the Government to keep the Office informed of any decision taken in this regard.