Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Equal Remuneration Convention, 1951 (No. 100) - Malaysia (Ratification: 1997)

Other comments on C100

Observation

Direct Request

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Article 2 of the Convention. Gender wage gap. In its previous comments, the Committee noted that while the labour force participation rate of women had increased, it remained low compared to that of men and the gender wage gap remained significant in certain industries and occupations. The Committee requested the Government to provide: (i) specific information on the impact that the measures taken, in the framework of the Eleventh Malaysia Plan 2016–20, to increase the labour force participation rate of women and their representation in decision-making positions in terms of reducing the gender wage gap in the various industries and occupations, particularly in those where it is high; (ii) information on any other measures taken or envisaged, in cooperation with workers’ and employers’ organizations, to this end; and (iii) up-to-date statistical data, disaggregated by sex, on the distribution of workers in the various industries and occupations, specifying their corresponding remuneration levels. In its report, the Government indicates that: (1) the impact of the measures taken can be seen from the results of the Labour Force Survey Report 2017 which show an increase of women’s participation in the labour force from 54.3 per cent in 2016 to 54.7 per cent in 2017. Further, the Salaries and Wages Report Survey 2017 noted a decrease in the overall gender wage gap (mean monthly salaries) from 7.6 per cent in 2016 to 6.2 per cent in 2017, and female employees recorded a higher growth in their monthly salary of 9.1 per cent compared to the monthly salary growth of 7.5 per cent for male employees; (2) it adopted the strategy B2 (Incoming female participation in the labour force) through the remaining period of the Eleventh Malaysia Plan which will focus on the following: (a) implementing flexible working arrangements by amending labour laws to allow the implementation of flexible working arrangements, subject to mutual agreement between employees and employers; (b) expanding minimum maternity entitlements by amending the Employment Act 1955 (EA 1955) to increase minimum maternity leave from 60 to 98 days in the private sector; and (c) regulation on childcare facilities will also be reviewed in order to better facilitate the establishment of childcare centres at workplaces or within the vicinity of workplaces; all government agencies are required to provide childcare facilities from January 2019; (d) to increase the role of women in leadership and policymaking, efforts will be continued to achieve the target of at least 30 per cent participation of women on the boards of directors of state owned enterprises (SOEs), statutory bodies and public listed companies by 2020; and (3) the review and amendments of the relevant labour laws being done through cooperation with employers and workers. The Department of Labour has several platforms of engagement including an online public engagement whereby all persons may provide views on the proposed amendments which will be taken into consideration by the Government. The Committee takes notes of all these initiatives and welcomes the slight increase in women’s participation in the labour force and reduction in the overall gender wage gap. It notes however that, according to the Labour Force Survey Report 2018, women’s participation in the labour force (80.7 per cent for men and 55.6 per cent for women) and the gender wage gap (6.2 per cent in 2017) remained significant between men and women. It notes further the concerns raised by the UN Committee on the Elimination of Discrimination Against Women (CEDAW) in its concluding observations, about the low representation of women in decision-making positions in the private sector despite their high educational and professional achievements and qualifications, as well as the persistent wage gap in most occupational categories (CEDAW/C/MYS/CO/3-5, 9 March 2018, paragraph 37). The Committee asks the Government to continue providing information on the effective impact of the measures adopted with a view to increasing the labour force participation rate of women and their representation in decision-making positions (in particular the implementation of the strategy B2 (Incoming female participation in the labour force) and the Eleventh Malaysia Plan 2016–20, and the amendment to the Employment Act 1955), in terms of reducing the gender wage gap in the various industries and occupations, both in the public and private sectors.

Minimum wages. In its previous comments, the Committee recalled that the principle of equal remuneration for work of equal value is to apply to domestic workers, whether nationals or non-nationals, and requested the Government to provide specific information on the manner in which it is ensured that in determining wages (including minimum wages) for domestic workers who are mostly women, their work is not being undervalued as compared to work done by predominately male groups. The Government recalls that the exclusion of domestic workers from minimum wage coverage is based on recommendations from the National Wages Consultative Council (NWCC), a tripartite body, which was established under the National Wages Consultative Council Act 2011 (Act 732) and that in 2018 the Minimum Wages Order (MWO) excluded domestic workers from its coverage, based on the NWCC. The Government explains that domestic workers are excluded from the MWO due to the informal nature of their employment as compared to those working in the formal sector. In addition, their accommodation cost (at the residence of the employer) and other costs, including food and other amenities are also borne by the employer. The Government indicates that the Ministry, through the NWCC will look into the observation of the ILO in this regard and will consider this matter in the forthcoming NWCC meetings. The Committee recalls that there is a possibility of indirect discrimination where female-dominated groups of workers are excluded from the application of minimum wage legislation, in particular those most vulnerable to wage discrimination such as domestic workers. Where certain categories of workers are excluded from general labour or employment law, it needs to be determined whether special laws or regulations apply to such groups, and whether they provide the same level of rights and protection as the general provisions (see 2012 General Survey on the fundamental Conventions, paragraphs 684, 742 and 745). The Committee notes that CEDAW in its 2018 concluding observations, expressed its “concern regarding the situation of women migrant domestic workers, who are denied equal rights under the State party’s labour laws vis-à-vis other migrant workers, including in relation to minimum wages, working hours, rest days, leave, freedom of association, and social security coverage. It is concerned that such lack of legal guarantees of their labour rights leaves women migrant domestic workers vulnerable to exploitation and abuse” (CEDAW/C/MYS/CO/3-5, 9 March 2018, paragraph 43). The Committee requests the Government to provide specific information on the manner in which it is ensured that in determining wages (including minimum wages) for domestic workers, including migrant workers, who are mostly women, their work is not being undervalued as compared to work done by predominately male groups and to keep it informed of the outcome of its deliberations with the NWCC on this matter.

Application of the principle in the public sector. As the Government’s report is silent on this point and recalling the Government’s obligation to ensure the full application of the principle of equal remuneration for men and women for work of equal value to its own employees, the Committee requests, once again, the Government: (i) to indicate how it is ensured that the criteria used to determine the classification of jobs and remuneration scales in the public sector are free from gender bias and that positions held predominantly by women are not undervalued in comparison with those held by men; (ii) to take the necessary steps to collect and analyse statistical information on the distribution of men and women in the various occupations and positions in the public sector and their corresponding remuneration levels; and (iii) to provide information on the measures taken to improve the access of women to higher ranking and better paid positions in the public sector, and the results achieved.

Article 3. Objective job evaluation. The Committee requested the Government to provide information on the adoption and implementation of the National Wage Index (NWI) in collaboration with employers’ and workers’ organizations. It also requested the Government to provide a copy of the NWI, once adopted, indicating also whether it would apply to both the public and private sectors. The Government indicates that the NWI has been formally launched on 19 February 2019. This index was developed as a guideline to measure the evolution in the salaries of workers in Malaysia and one of the key finding is that basic wages grew by 8.2 per cent over eight quarters from 2016 to 2018. Regarding the implementation of the NWI, the Government indicates that it is available online on the website of the Institute of Labour Market and Analysis (ILMIA) so that employers could use it as a guide for setting pay levels for salary adjustments and as input to their human resource policies, and employees and job seekers could benchmark changes in their wages to broader labour market trends and to assess their wage increase or changes over their career path. The Committee notes that the NWI was based on quarterly surveys on payroll information and adjustments between September 2016 and June 2018. It is a combined index of both the private and public sector wage and salary changes. The Committee welcomes the launch of the National Wage Index (NWI) and asks the Government to provide information on the findings of the NWI as regards the trends in women’s and men’s earnings by occupations and economic sectors, both in the private and public sector.

Article 4. Cooperation with the social partners. As the Government’s report is silent on this point and recalling the important role of the social partners in implementing the principle of the Convention, the Committee requests the Government to take the necessary measures to effectively cooperate with employers’ and workers’ organizations, within the National Labour Advisory Council or otherwise, with a view to giving effect in practice to the principle of equal remuneration for men and women for work of equal value. The Committee requests the Government to provide information on any specific measures taken in this respect, as well as on the results achieved.

Enforcement. The Committee requested the Government to provide information on the activities of the labour inspection services, as well as any other available information on the number, nature and outcome of cases regarding equal remuneration for men and women for work of equal value, in both the private and public sectors, dealt with by any competent authorities. It also requested the Government to provide specific information regarding awareness-raising activities conducted among workers, employers and their organizations, as well as labour inspectors, judges and other officials responsible for ensuring the implementation of the principle of the Convention, in practice. The Government indicates that it is currently reviewing and amending the Employment Act 1955 in order to include an anti-discriminatory provision, which will authorize the Government to inquire into any complaints regarding discriminatory treatments in workplaces relating to gender, race and religion. Until this process is completed, no specific legislation is available for enforcement relating to inequality based on gender. Hence, no cases regarding equal remuneration are handled by the Government. Recalling that monitoring and enforcement of equality and anti-discrimination laws and policies is an important aspect in determining if there is effective implementation of the Convention, the Committee requests the Government to provide information on the progress made towards the adoption of appropriate amendments to the Employment Act 1955. In the meantime, please provide information on any awareness-raising activities conducted among workers, employers and their organizations, as well as labour inspectors, judges and other officials responsible for ensuring the implementation of the principle of the Convention in practice.