Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Forced Labour Convention, 1930 (No. 29) - Malaysia (Ratification: 1957)
Protocol of 2014 to the Forced Labour Convention, 1930 - Malaysia (Ratification: 2022)

Other comments on C029

Observation

Direct Request

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Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 102nd Session, June 2013)

The Committee notes the communication from the International Trade Union Confederation (ITUC) dated 31 August 2013, as well as the Government’s report. It also takes note of the detailed discussions that took place at the Conference Committee on the Application of Standards in June 2013 concerning the application by Malaysia of the Convention.

Articles 1(1), 2(1) and 25 of the Convention. 1. Trafficking in persons. The Committee previously noted the ITUC’s statement that Malaysia is a destination, and to a lesser extent, a source and transit country for trafficking of men, women and children, particularly for forced prostitution and forced labour. The ITUC also alleged that prosecution for forced labour trafficking was rare. The Committee also noted the launching of the National Action Plan on Trafficking in Persons (2010–15), as well as information from the Government on the number of prosecutions and convictions related to trafficking, but not the specific penalties applied to perpetrators.

The Committee notes the Government’s statement that it is taking measures to strengthen the capacity of the labour inspectorate to identify victims and deal with the complaints received, including capacity building courses in collaboration with the ILO and workshops with the Council for Anti-Trafficking in Persons and Anti-Smuggling of Migrants. The Government indicates that between 2012 and August 2013 there were a total of 120 cases brought under the Anti-Trafficking in Persons Act, resulting in 23 convictions. There were 30 cases discharged and 67 cases pending trial. The Committee once again notes an absence of information on the specific penalties applied to those convicted.

The Committee notes that the Conference Committee on the Application of Standards, in June 2013, took note of the concern expressed by several speakers regarding the magnitude of trafficking in persons in the country, as well as the absence of information provided on the specific penalties imposed on persons convicted under the Anti-Trafficking in Persons Act. The Committee, like the Conference Committee on the Application of Standards, urges the Government to reinforce its efforts to combat trafficking in persons and to strengthen the capacity of the relevant public authorities in this respect. It also requests the Government to continue to provide information on measures taken in this regard, including the implementation of the National Action Plan on Trafficking in Persons (2010–15), and on the results achieved. Lastly, it requests the Government to continue to supply information on the application in practice of the Anti-Trafficking in Persons Act, including the specific penalties applied to those convicted under the Act, starting with the 23 convictions reported by the Government between 2012 and August 2013.

2. Vulnerable situation of migrant workers with regard to the exaction of forced labour. The Committee previously noted the ITUC’s allegation that some workers who willingly enter Malaysia in search of economic opportunities subsequently encounter forced labour at the hands of employers or informal labour recruiters. These migrant workers are employed on plantations and construction sites, in textiles factories, and as domestic workers, and experience restrictions on movement, deceit and fraud in wages, passport confiscation and debt bondage. Domestic workers face difficult situations, including the non-payment of three to six months wages. There had been no criminal prosecutions of employers or labour recruiters who subject workers to conditions of forced labour. The Committee also noted the information from the International Organization for Migration, that as of 2009, there were approximately 2.1 million migrant workers in Malaysia, and that migrant workers in the country may be subject to unpaid wages, passport retention, heavy workloads and confinement or isolation. It further noted that a Memorandum of Understanding had been signed between the Governments of Indonesia and Malaysia.

The Committee notes the Conference Committee on the Application of Standards urged the Government to take immediate and effective measures to ensure that perpetrators were prosecuted and that sufficiently effective and dissuasive sanctions were imposed, as well as to ensure that victims were not treated as offenders and were in a position to turn to the competent judicial authorities in order to obtain redress in cases of abuse and exploitation. The Conference Committee also encouraged the Government to continue to negotiate and implement bilateral agreements with countries of origin, so that migrant workers were protected from abusive practices and conditions that amounted to the exaction of forced labour once they were in the country, and to work with the countries of origin to take measures for their protection prior to departure.

The Committee notes that the ITUC, in its most recent comments, states that there has been no action taken by the Government since the Conference Committee’s discussion and that the Government has not followed any of the recommendations made by that Committee. The ITUC asserts that the situation and treatment of migrants workers in the country has further deteriorated, causing more migrant workers to suffer from forced labour. The Government has not taken any measures to monitor the deception of migrant workers due to false documents or the switching of employment contracts upon arrival, although this is a well-known issue. Despite protections in law, most migrant workers work long hours and are subject to underpayment or late payment of wages. An estimated 90 per cent of employers retain the passports of migrant workers, and these workers are afraid to report abuse or even request information concerning labour rights. Migrant workers who leave their employer due to abuse become de facto undocumented workers, subject to deportation. The Government has further criminalised migrant workers, identifying 500,000 undocumented migrant workers for deportation without adequately assessing whether they are victims of forced labour. While the Ministry of Human Resources announced its intention in 2008 to introduce a regulation on the working conditions of domestic workers, this regulation has not yet been introduced. The ITUC urges the Government to abolish the labour outsourcing system, and to include domestic workers within the scope of the Employment Act (Minimum Standards).

The Committee notes the Government’s indication that measures taken to protect migrant workers include the implementation of a programme that will result in the development of an updated list of foreign workers in the country, which will contribute to the protection of these workers against unscrupulous employers. This programme will create a platform for Malaysia to collaborate with sending countries to ensure the orderly entry of migrant workers, so that they can be protected from exploitation. The Government is also implementing an awareness-raising programme for foreign domestic workers and their employers, and has held seminars regarding the rules and regulations which are enforceable in Malaysia for 5,651 participants. Additionally, it has set up a Special Enforcement Team, consisting of 43 officers, to enhance enforcement activities to combat forced labour issues. The Department of Labour carried out 41,452 workplace inspections in 2012 and 15,370 inspections in the first nine months of 2013, to check for forced or compulsory labour practices, and no forced or compulsory labour practices were recorded. The Government further indicates that it has signed a Memorandum of Understanding with the Government of Bangladesh regarding the recruitment of workers.

While noting certain awareness-raising and data collection measures taken by the Government, the Committee observes that the implemented law enforcement measures appear to have yielded few tangible results. In particular, it notes with concern that the considerable number of inspections carried out appear not to have had a concrete impact with regard to combating forced labour practices in the country and ensuring that perpetrators of this practice are penalized. In this regard, the Committee recalls the importance of taking effective action to ensure that the system of the employment of migrant workers does not place the workers concerned in a situation of increased vulnerability, particularly where they are subjected to abusive employer practices, such as retention of passports, non-payment of wages, deprivation of liberty and physical and sexual abuse, as such practices might cause their employment to be transformed into situations that could amount to forced labour. Therefore, the Committee once again urges the Government to take the necessary measures to ensure that migrant workers are fully protected from abusive practices and conditions that amount to the exaction of forced labour. In this regard, it urges the Government to take specific measures to respond to cases of abuse of migrant workers and to ensure that victims of such abuse are able to exercise their rights in order to halt violations and obtain redress. It also requests the Government to take concrete action to identify victims of forced labour among migrant workers and to ensure that these victims are not treated as offenders. Moreover, noting an absence of information in the Government’s report on any prosecutions undertaken, the Committee urges the Government to take immediate and effective measures to ensure that perpetrators are prosecuted and that sufficiently effective and dissuasive sanctions are imposed. It requests the Government to provide, in its next report, information on the number of prosecutions and convictions concerning the exploitative employment conditions of migrant workers, and the specific penalties applied. Lastly, the Committee requests the Government to continue to provide information on the implementation of bilateral agreements with countries of origin, as well as any other cooperation measures undertaken in this regard.

The Committee notes that the Conference Committee, in June 2013, requested the Government to accept a technical assistance mission to ensure the full and effective application of the Convention. It also notes that the ITUC, in its most recent comments, urges the Government to accept an ILO mission to the country. In this regard, it notes the Government’s statement in its report that it is still considering the offer, as forced labour in Malaysia is an issue which cuts across many government agencies. Taking note of the Government’s statement, the Committee strongly encourages the Government to avail itself of ILO technical assistance, and to accept and receive a technical assistance mission in the near future.

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

[The Government is asked to reply in detail to the present comments in 2014.]