Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 362, Novembre 2011

Effect given to the recommendations of the Committee and the Governing Body

1. 87. The Committee last examined this case, which concerns the denial of freedom of association rights to migrant workers, including migrant domestic workers, in law and in practice, at its March 2010 meeting [see 356th Report, paras 82–85]. On that occasion, the Committee noted with regret that, in respect of its previous recommendations in the present case, the Government merely repeated its previous observations. The Committee once again expressed the expectation that the Government would take the necessary measures, including legislative if necessary, to ensure in law and in practice that domestic workers, including contract workers, whether foreign or local, may all effectively enjoy the right to establish and join organizations of their own choosing. Additionally the Committee once again requested the Government to take the necessary steps to ensure the immediate registration of the association of migrant domestic workers so that they may fully exercise their freedom of association rights, and requests the Government to keep it informed of the progress made in this regard.
2. 88. In a communication dated 9 March 2011, the Government indicates that the Ministry is very reluctant to allow the formation of associations of migrant domestic workers and that the Committee’s recommendation to allow for the formation of such associations should not be considered on security grounds. While acknowledging that migrant workers have contributed to the development of Malaysia, the Government points out that, by allowing the registration of associations of domestic workers, Malaysia will be seen as opening the doors for conflicts as continuous demands by migrant domestic workers through any form of organization may provoke nationalist and racist tendencies among the local population which will be prejudicial to public order and jeopardize national security in the long run. The Government indicates that, under article 10 of the Federal Constitution, the Parliament may impose laws to ensure national security and public order. Taking into account the specific context prevailing in Malaysia, namely the priorities of nation-building in a sensitive multi-cultural, multi-religious, multi-ethnic and multi-racial environment, the Government further states that they have to respond wisely, carefully and thoroughly on this issue and suggests that new additional forums should be provided to allow migrant domestic workers to channel their grievances either through existing bilateral and multilateral arrangements, like ASEAN or the subregional grouping. The Government indicates that it does not condone abuses by the employers on migrant domestic workers as the existing laws do protect their welfare which is also reflected in many court rulings. The Government further indicates that Malaysia has made progress in enhancing the welfare of migrant domestic workers under the Workmen’s Compensation Act 1952 (Amended), Social Security Act, 1969, and other related rules and regulations.
3. 89. The Committee takes due note of the above information provided by the Government. The Committee notes with regret that no progress has been made since the last examination of this case to ensure that migrant domestic workers may all effectively enjoy the right to establish and join organizations of their own choosing. Regarding the concerns of the Government in relation to the consequences, in the long run, of allowing migrant domestic workers to establish and join trade unions on national security and public order, the Committee recalls that the development of free and independent organizations and negotiation with all those involved in social dialogue is indispensable to enable a government to confront its social and economic problems and resolve them in the best interests of the workers and the nation. [See Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 26.] The Committee further recalls that it always takes account of national circumstances, such as the history of labour relations and the social and economic context, but the freedom of association principles apply uniformly and consistently among countries [Digest, op. cit., para. 10].
4. 90. The Committee recalls that on numerous occasions it has interpreted the right of freedom of association to include migrant workers, and has further stated that domestic workers are not excluded from the application of Convention No. 87 and should therefore be governed by the guarantees it affords and have the right to establish and join occupational organizations [Digest, op. cit., para. 267]. The Committee urges the Government to take the necessary measures, including legislative if necessary, to ensure in law and in practice that domestic workers, including contract workers, whether foreign or local, may all effectively enjoy the right to establish and join organizations of their own choosing. The Committee invites the Government to avail itself of the technical assistance of the Office in this respect. Additionally the Committee urges the Government to take the necessary steps to ensure the immediate registration of the association of migrant domestic workers so that they may fully exercise their freedom of association rights, and requests the Government to keep it informed of the progress made in this regard.
5. 91. The Committee recalls the provisions of the Convention concerning decent work for domestic workers, in particular Article 3 with respect to freedom of association and the effective recognition of the right to collective bargaining of domestic workers.