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Underground Work (Women) Convention, 1935 (No. 45) - Malaysia - Peninsular (Ratification: 1957)

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Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee recalls that the ILO Governing Body (at its 334th Session, October–November 2018), on the recommendation of the Standards Review Mechanism (SRM) Tripartite Working Group, classified Convention No. 45 as an outdated instrument, and has placed an item on the agenda of the International Labour Conference in 2024 (112th Session) concerning its abrogation. The Governing Body also requested the Office to follow-up with Member States currently bound by Convention No. 45 to encourage the ratification of up-to-date instruments concerning OSH, including but not limited to the Safety and Health in Mines Convention, 1995 (No. 176), and to undertake a campaign to promote the ratification of Convention No. 176. The Committee therefore encourages the Government to follow up on the Governing Body’s decision at its 334th Session (October–November 2018) approving the recommendations of the SRM Tripartite Working Group, and to consider ratifying the most up-to-date instruments in this subject area.

Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous comments.

Repetition
The Committee notes that the Government in its report refers to the Factories and Machinery Act, 1967 and the Occupational Safety and Health Act, 1994 as the relevant legislation applying the Convention. According to this legislation there would be no specific provisions related to the gender of persons employed, but that all workers are protected equally. However, according to available information, section 35 of the Employment Act of 1955, referred to in previous reports, remains in force and continues to prohibit underground work for women. The Government is requested to clarify whether section 35 of the Employment Act of 1955, which gives effect to Article 2 of the Convention, remains in force or not.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes that the Government in its report refers to the Factories and Machinery Act, 1967 and the Occupational Safety and Health Act, 1994 as the relevant legislation applying the Convention. According to this legislation there would be no specific provisions related to the gender of persons employed, but that all workers are protected equally. However, according to available information, section 35 of the Employment Act of 1955, referred to in previous reports, remains in force and continues to prohibit underground work for women. The Government is requested to clarify whether section 35 of the Employment Act of 1955, which gives effect to Article 2 of the Convention, remains in force or not.

The Committee notes the Government’s declared intention to denounce 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 2017 to 30 May 2018.

The Committee welcomes the information that the Government is considering the possibility of ratifying the Safety and Health in Mines Convention, 1995 (No. 176), as the Occupational Safety and Health Act 1994 would appear to give effect to the terms of this Convention. The Committee requests the Government to keep the Office informed of any decision taken in this regard.

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.