Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Minimum Age Convention, 1973 (No. 138) - Malaysia (Ratification: 1997)

Other comments on C138

Observation

Direct Request

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Article 3(2) of the Convention. Determination of hazardous work. With regard to the determination of types of hazardous work prohibited to children under the age of 18 years, the Committee requests the Government to refer to its detailed comments under the Worst Forms of Child Labour Convention, 1999 (No.182).

Article 7(1). Minimum age for admission to light work. The Committee previously noted that section 2(2)(a) of the Children and Young Persons (Employment) Act of 1966 (CYP Act) allows children to be employed in light work which is suitable to their capacity in any undertaking carried on by their family but observed that no minimum age for admission to light work had been specified.

The Committee notes with satisfaction that section 3(c)(2A) of the CYP Amendment Act of 2019 establishes a minimum age of 13 years for admission to light work. The Committee also notes that the CYP Amendment Act, 2019 defines light work as “any work performed by a child or young person which is not likely to be harmful to their health, mental or physical capacity; or to prejudice his/her attendance at school that includes any place which teaches any religion, his/her participation in vocational orientation or training programmes approved by the competent authority or his capacity to benefit from the instruction received.”

Article 9(1). Penalties, labour inspection and application of the Convention in practice. In reply to its previous comments, the Committee notes the Government’s indication that the penalties provided under section 14 of the CYP Act of 1966 for the violations of any of its provisions have been enhanced by the CYP Amendment Act of 2019. Accordingly, any contravention of the provisions of the Act shall be punishable with imprisonment not exceeding two years or to a fine of RM50,000 (approximately US$10,555) or to both. In the event of a second or subsequent offence, the penalty shall be imprisonment not exceeding five years and/or a fine not exceeding RM100,000. With regard to the number of prosecutions carried out, the Government indicates that 21 cases were prosecuted under the CYP Act of 1966, whereby the majority of the cases related to the contravention of the hours of work, but provides no information on the results of these prosecutions or penalties imposed. The Committee also notes the Government’s information that in order to promote awareness towards eliminating child labour, the Ministry of Human Resources has established Technical Working Groups in the plantation sector that provide guidance on the national legislation and policies on child labour as well as on dealing with labour issues so as to ensure compliance with the relevant laws and policies.

The Committee further notes that a facilitator’s manual for Malaysian labour inspectors, entitled: Training for Malaysian inspectors on forced labour, child labour and gender-based discrimination, violence and harassment in the workplace: Facilitator’s manual, was developed and published in 2022, within the framework of the ILO project, “From Protocol to Practice: A Bridge to Global Action on Forced Labour”. This manual aims at improving the capacity of the labour inspectorate to respond to the most urgent needs for the protection of workers’ rights, particularly on forced labour and child labour and provides suggestions to address the challenges in conducting inspection on child labour. According to this document, child labour is common in the informal economy and includes scavenging, begging, mobile vending, work in small-scale or home-based industries and domestic work. Moreover, according to the information from the 2018 Employment survey in oil Palm plantations, as referred in this document, 33,600 children aged 5 to 17 years are in child labour on oil palm plantations in Malaysia, with 58.8 per cent in Sabah and 39.5 per cent in Sarawak, of which an estimated 47.5 per cent are children aged 5–11 years and 30.9 per cent are children aged 15–17 years (pages 83 and 87). The Committee further notes from a Press release of ILO of 25 June 2020 wherein the ILO and the UNICEF urged Malaysia to tackle child labour which has increased due to COVID-19 situation. The Committee requests the Government to continue its efforts to strengthen the capacity of the labour inspectorate to better monitor child labour, particularly in the oil palm plantations in Sabah and Sarawak and to provide information on the measures taken and the results achieved in this regard. It also requests the Government to continue to take the necessary measures to ensure that persons who violate the CYP Act and other related legislation on the employment of children, are prosecuted and that sufficiently effective and dissuasive penalties are imposed, and to provide information on the nature of the violations found, and the number and nature of the penalties imposed including, for fines assessed, and the amounts actually collected. Lastly, it requests the Government to provide information on the situation of working children, including data on the number of children and young persons below the minimum age of 15 who are engaged in child labour, and information on the nature, scope and trends of their work. To the extent possible, this information should be disaggregated by age and gender.