Migration for Employment Convention (Revised), 1949 (No. 97) - Malaysia - Sabah (RATIFICATION: 1964)

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The Government has supplied the following information:

An ILO technical advisory team visited Malaysia on 18-19 May 1998 to study in depth the concerns raised by the Government in respect of compliance with the present Convention (as well as Convention No. 19). The team met with the Government and representatives of employers and workers in separate discussions. A report will be prepared by this team on the findings of these discussions. A copy of the report will be forwarded to the ILO as soon as it is available.

In addition a Government representative recalled that the Government had provided an exhaustive explanation to the Committee the previous year concerning the allegations of discrimination in the payment of employment injury and invalidity compensation to foreign workers under the Workmen's Compensation Scheme. Since then, on 17 and 18 May 1998, an ILO team of experts had visited the country, and held discussions with government officials and with employers' and workers' representatives. The information provided at the government meeting was objective and detailed, and the expert mission expressed satisfaction at the meeting and had appreciated the information provided. A report was being prepared by the relevant MDT on the findings of the expert mission. As it had been awaiting the visit by the ILO expert team, the Government had not been able to report any new developments to the Committee of Experts.

The Employers' members noted that it was the third time in three years in which the Conference Committee had examined this case. Despite the detailed discussion and conclusions reached the previous year, the Committee of Experts had noted that the requested report had not been received and had therefore repeated its previous observation. Once again this year, the Government representative provided an extremely short explanation of the situation. The criticism of the Committee of Experts was that, in the event of an occupational accident, foreign workers received compensation in the form of a lump sum, whereas nationals had the right to the periodic payment of these benefits. The Government had in the past described the advantages of lump-sum payments for workers to whom it would be difficult to guarantee the periodic payment of benefits. The question therefore arose as to whether the Convention provided for absolute equality of treatment in this matter. The Convention required that migrant workers must receive treatment that was not less favourable, which could imply equal treatment, better treatment or treatment of equal value. The comparison between the value of periodic benefits and that of a lump-sum benefit was a particularly delicate and technical question. The Government believed that in this case the benefits were equivalent. As the Government had not provided a report, the Committee of Experts had not been able to raise new elements. The only new information available, also in written form, concerned the advisory mission undertaken recently by the ILO. The secretariat could inform the Conference Committee of the spirit in which the mission had been carried out and the results which had been obtained. Beyond this, no new elements were available which would allow the Conference Committee to modify its conclusions from the previous year.

The Workers' members emphasized that the Conference Committee was discussing this case for the third consecutive time. The Government could have avoided its name being placed once again on the list of cases for examination by sending a report containing the information, requested by both the Committee of Experts and the Conference Committee concerning the level of benefits effectively provided to migrant workers as compensation for occupational accidents. The Government had itself undertaken to do so last year. In view of this commitment, the previous conclusions and the importance which the Conference Committee attached to the principle of non-discrimination, it had had no choice but to discuss the case again. The brief indications provided in writing and by the Government representative concerned only the ILO technical advisory mission carried out in May 1998 and legislative changes mentioned in the past which were planned to give effect to the principle of equality of treatment for migrant workers. It would appear that these changes had only increased the ceiling of the lump-sum benefits available to migrant workers, without extending entitlement to periodic benefits to them. The Government's position was based on bilateral agreements under which the other State party to the agreement had accepted the exclusion of its nationals from the benefits of the Employees Social Security Act. However, as emphasized by the Committee of Experts, bilateral agreements of that nature could not strike down the principle of non-discrimination set out in a ratified Convention. In the context of globalization of the economy, universal scope of the principle of non-discrimination needed to be reaffirmed. Both individual States and the international community needed, in particular, to ensure that the principle was respected with regard to migrant workers, who were a very vulnerable group. The Government had referred in particular to problems of a practical nature. The technical solutions to these problems should not in any event lead to unequal treatment in the amounts of benefit paid. It was essential for the Government to furnish a report on the developments in this case for examination by the Committee of Experts. It should also indicate the position of the social partners on the subject.

The Deputy Representative of the Secretary-General confirmed that a high-level technical advisory mission had visited Malaysia on 17 and 18 May 1998. The internal mission report had been received and was the subject of consultations in the Office. The mission still had to submit its report to the Government. The report would serve as a basis for continued dialogue with the Government, particularly with a view to the preparation of the report which was due to be provided for examination by the Committee of Experts at its next session in November-December 1998.

The Worker member of Malaysia reported that the Malaysian Trade Union Congress had received the visit of the ILO expert team. Following their meeting, the team of experts had undertaken to set out the results of its discussions with the social partners in a report for further consideration by the relevant parties. In the light of this visit, he suggested that it would be premature for the Conference Committee to discuss the matter further at this stage.

The Worker member of Pakistan emphasized that migrant workers were one of the categories of the population for whose protection the ILO had been established. This category of workers was particularly vulnerable in the event of injury because it did not have the usual family support and therefore required greater care to achieve recovery. The Conference Committee had discussed this case on three occasions and the Committee of Experts had pointed out that, even with the consent of the workers concerned, it was not permissible for migrant workers to bargain away their right to equality of treatment. In the event of prolonged sickness, migrant workers, like all other categories of workers, required medical facilities and periodic benefits to secure their financial situation. He therefore called upon the Government to give effect to the recommendations of the Committee of Experts both in the context of this Convention and of Convention No. 19, also ratified, and looked forward to the adoption of a solution which would benefit migrant workers.

The Government representative said that he had taken due note of the comments made by the various speakers. However, pending receipt of the report promised by the ILO team of experts, he had no further comments to make.

The Employers' and Workers' members considered that, in the absence of any new information from the Government and the absence of details as to the results of the ILO advisory mission, the Conference Committee was bound to reiterate its previous conclusions and to express the hope that the results of the mission would help to resolve the problems.

The Committee took note of the written and oral information supplied by the Government representative and of the discussion which ensued. The Committee regretted that no report had been sent. However, the Committee noted that a technical advisory mission had recently visited the country to examine ways of ensuring no less favourable treatment of non-nationals than nationals in the area of industrial accident benefit. The Committee expressed the hope that with the technical assistance of the ILO, the Government and the social partners would arrive at a solution to the coverage of non-nationals -- either by placing them back under the Employees' Social Security Scheme, where they had previously enjoyed the same benefits as nationals, or by amending the Workers' Compensation Scheme under which they were currently placed -- so that compliance with Article 6 of the Convention was ensured. The Committee stressed the fundamental importance of equality of treatment between nationals and foreign workers provided for by Conventions Nos. 97 and 19. The Committee trusted that the next report of the Government to the Committee of Experts would reflect positive developments in this regard and urged the Government to report in detail on all the points raised by the Committee giving also information on the positions of the social partners. It expressed the hope that the result of the technical assistance visit from the ILO would bring the case closer to a solution.

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A Government representative of Malaysia provided information to the Committee with regard to the questions raised in relation to the Convention. He reaffirmed his country's commitment to pursuing a policy of equal treatment in employment in so far as foreign and local workers were concerned. This commitment had already been reflected in the various national labour laws currently in force in the country. The Employment Act, which was the principal labour legislation governing terms and conditions of employment, made no distinction between a foreign worker and local worker. Both were equally entitled to the rights and benefits provided for under the said Act, including a weekly rest day and paid annual leave and public holidays. Where the employer provided housing facilities to his workers, foreign or local, he would have to comply with the minimum standards required under the Workers (Minimum Standards of Housing and Amenities) Act. On matters relating to safety and health at the workplace, the Occupational Safety and Health Act provided for similar protection to both local and foreign workers. On social security, foreign workers also enjoyed similar benefits as their local counterparts in such areas as paid sick leave, medical leave, termination benefits and maternity protection. Where there was a collective agreement covering the enterprise, foreign workers were equally entitled as national local counterparts to all the benefits provided for in the collective agreement. In addition, a new legal provision was being proposed to require employers to accord equality of treatment to foreign workers on terms and conditions of employment. The proposed legal provision would ensure that where a foreign worker and a local worker were employed in similar work or a similar capacity both might be offered the same terms and conditions of employment. It was therefore evident that Malaysia had complied with the Convention both in law and in practice to the fullest extent as far as circumstances permitted. However, during the past few years, a similar objection had been raised against Malaysia on just one aspect of Article 6 of the Convention, pertaining to the payment of compensation in respect of employment injury and invalidity. Malaysia's explanation and clarification on this issue in all previous sessions had been met with disapproval by this Committee. He hoped that this time Malaysia's case would meet with deeper understanding by the Committee. The change in policy by the Malaysian Government, in accordance with which a certain category of foreign workers were placed under the Workmen's Compensation Act should not be viewed as a form of discrimination against foreign nationals working in Malaysia. The change in policy had been necessitated by compelling circumstances and unavoidable reasons. In the first place, he specified that not all foreign workers had been placed under the Workmen's Compensation Act. Only foreign workers who were not permanently resident in Malaysia had been placed under the purview of the Act, whereas foreign workers who were permanently resident in the country continued to remain under the Employees Social Security Act in the same way as their local counterparts. He hoped that the Committee would take particular note of this important point, which substantiated the fact that, wherever possible and practicable, foreign workers in Malaysia were accorded equal treatment with their local counterparts. In addition, he explained that the basic difference between the Employees Social Security Scheme and the Workmen's Compensation Scheme was that the former provided compensation for employment injury and invalidity in the form of periodic payments, while the latter provided compensation in the form of lump-sum payments. For many years, all categories of foreign workers had been placed under the Employees Social Security Scheme together with nationals. However, as of 1 April 1993, the Government, after carrying out an in-depth study on the matter, had decided to transfer foreign workers who were not permanently resident in the country from the Employees Social Security Scheme to the Workmen's Compensation Scheme. It had been found that the previous system, where non-permanent resident foreign workers were placed under the Employees Social Security Scheme had been operating under tremendous administrative and operational problems. In general, non-permanent resident foreign workers worked in Malaysia under a work permit for a maximum period of three years, after which they had to return to their countries. Past experience showed that once the foreign workers had left Malaysia, extreme practical difficulties arose in obtaining accurate information from them which was urgently required for operational purposes. Even such basic information as whether the beneficiary was still alive or whether he or she had recovered from disability was difficult to obtain and verify, which gave rise to problems in deciding on the continued entitlement of the beneficiary to the periodic payments. Such problems could also cause genuine beneficiaries to be deprived of periodic payments to which they were rightfully entitled. In practice, therefore, the absence or inaccuracy of such vital information constantly threatened, not only the effective functioning of the scheme, but also its viability. It was for these reasons that non-permanent resident foreign workers had been taken out of the Employees Social Security Scheme and placed under the Workmen's Compensation Scheme, under which compensation for employment injury and invalidity could be paid in a lump sum before their departure to their home countries. The decision to place non-permanent resident foreign workers under the Workmen's Compensation Scheme had therefore been motivated by the desire of the Malaysian Government to protect such foreign workers under a scheme that best served their interests.

The intention of the Government of Malaysia to ensure that non-permanent resident foreign workers did not lose out from the change in policy was clearly reflected in the two follow-up measures taken by the Government, immediately after the transfer of these foreign workers from the Employees Social Security Scheme to the Workmen's Compensation Scheme. One of the measures taken was the amendment of the Workmen's Compensation Act to increase the level of the lump-sum compensation payable to such foreign workers by some 25 per cent. The other measure was the extension of the coverage of the Workmen's Compensation Scheme, which took effect on 1 November 1996. Before the extension, the scheme had only covered employment injury sustained as a result of accidents occurring during working hours. Following the extension, foreign workers enjoyed 24-hour coverage and protection against employment injury and invalidity arising out of accidents occurring during and outside working hours, thereby doubling the coverage and protection. To further enhance the level of protection of foreign workers, legal rules had been established requiring employers, firstly, not to dispute any claim for compensation by foreign workers and, secondly, to settle the compensation payable within seven days of the receipt of the compensation assessment from the Labour Department, thereby ensuring a litigation-free and worry-free right to compensation for foreign workers who sustained employment and non-employment injury and invalidity. Even nationals did not enjoy such protection. Under these circumstances, the contention that the value of the benefits provided under the Workmen's Compensation Scheme was substantially lower than that provided under the Employees Social Security Scheme should no longer be pursued.

He added that there were many other forms of labour protection under which foreign workers in Malaysia enjoyed equal treatment compared with their local counterparts.

The complaint against Malaysia under Convention No. 97 appeared to be based on the contention that, unless local and foreign workers were placed under the same scheme, there would be no equality of treatment between them. Malaysia's experience showed that this idealistic concept was not only impossible to implement, but also unfavourable to the foreign workers concerned. This was the reason why Malaysia had not been able to abide by the recommendations of the Committee of Experts to transfer the foreign workers back under the Employees Social Security Act. He therefore appealed to the Conference Committee to adopt a more flexible and realistic approach by giving due consideration to national circumstances, so that member States could respect and implement its recommendations.

The Employers' members thanked the Government representative for his clear statement concerning the matters raised by the Committee of Experts in relation to the situation in law and practice of accident compensation coverage for foreign workers in Malaysia. Although foreign workers had originally been integrated into the national social security system in the same way as national workers, they had subsequently been transferred to a different compensation scheme, under which accident compensation was dealt with in a different manner. One of the principal differences was that, under the new scheme, they were provided with a lump sum, but not periodic payments in accordance with the provisions of the Convention. Indeed, whereas the Convention required equality of treatment between foreign and national workers, this did not exist in practice. The Government representative had advanced a number of reasons for this difference in treatment in response to the comments of the Committee of Experts. When the case had been considered previously, one of the points considered had been the fact that agreements had been concluded with labour sending countries and the foreign workers concerned under which they consented to their coverage under different legislation from that covering nationals. However, the Government representative had not provided any information on this point. The Employers' members emphasized that accident compensation coverage was not a subject for negotiation. Although Article 6 of the Convention permitted a number of exceptions to the rule of equality of treatment, these exceptions did not apply in this case. The reasons now advanced by the Government representative for the change in coverage had included the fact that foreign workers normally remained for only three years in Malaysia before returning to their countries. The fact that it was then difficult to obtain information concerning these workers was important and could result, in practice, in the non-payment of their benefits. It might be possible to sympathize with the reasons advanced for the change that had been made in their accident compensation coverage. It was also possible that the new system might be less burdensome to operate. The Employers' members also acknowledged that certain improvements had been made to the accident compensation coverage scheme for foreign workers, including its extension to cover accidents occurring outside working hours and an increase in the level of the lump sum. However, information had not been provided on how the revised lump sum compared to the level of the periodical payments made to nationals of Malaysia. However, the system was not in accordance with the requirements of the Convention. The Employers' members considered that the Government should comply with the measures requested by the Committee of Experts. They believed that the Government should also explain the new elements that it had raised in its statement today in a detailed report to the Committee of Experts. The Government should take note of the fact that the situation was not fully in accordance with the requirements of the Convention and should re-examine the situation to see whether accident compensation could be structured as it had been in the past. The basic principle set out in the Convention was that foreign workers should receive exactly the same treatment as nationals, and that there could be no exceptions to that principle.

The Workers' members thanked the Government representative for the additional information provided, and stressed that the protection and promotion of the principle of equality of treatment of workers was one of the priority objectives of international standard setting activities. The globalization of the economy stimulated both the internationalization of the markets, products, services and capital as well as the number of migrant workers. Migrant workers were one of the most vulnerable groups as regards social rights, and the international community should ensure that they were not subjected to any form of discrimination. Furthermore, ensuring that equality of treatment in employment was extended to migrant workers, certainly contributed to good relations, as well as peace among people, regions and countries. It was significant to note that, in many States, workmen's compensation for occupational injuries was one of the first branches of social security to develop and that internationally, it was one of the first topics considered by the ILO, resulting inter alia in the adoption of the Workmen's Compensation (Agriculture) Convention (No. 12), the Workmen's Compensation (Accidents) Convention (No. 17) and the Workmen's Compensation (Occupational Diseases) Convention (No. 18), in the 1920s.

Discrimination in Malaysia against migrant workers in the context of workmen's compensation was discussed in the present Committee last year, as, since 1993, migrant workers were no longer covered by the social security system which applied to national wage earners. The compensation system envisaged for migrant workers was a lump sum benefits system rather than a system of periodic payment of benefits. When this case was discussed last time, the Government declared that the 1993 Employees Social Security Act was being amended, and that the amendments adopted would be transmitted to the ILO, which, in fact has been done. According to the Government, the amendments were intended to improve the situation, namely by increasing the ceiling on the lump-sum benefits payable to the beneficiaries. The Government was of the opinion that this legislation, on the whole, conformed to the relevant international standards and that the differences in the compensatory systems were caused by administrative difficulties, exposed in detail during this session. The present Committee noted, however, in 1996, that different methods of administering systems of compensation could not justify a difference in treatment between Malaysian nationals and migrant workers as regards the level of compensation. The amendments only increased the ceiling on the lump-sum benefits payable to the beneficiaries and thereby confirmed a discriminatory situation. In its last discussion of the case, the Committee of Experts took note of the information provided by the Government according to which certain categories of nationals were not covered under the 1993 Act, and that States sending migrant workers to Malaysia endorsed the removal of foreign workers from the ambit of the 1993 Act. Furthermore, it seemed that foreign workers voluntarily consented to this arrangement when accepting work in Malaysia. The Workers' members stressed the fact that the Convention did not permit a departure from the principle of equality of treatment in respect of benefits payable in case of an accident by way of an individual agreement or by way of an agreement with the country of origin of the migrant workers. In the terms of the Committee of Experts, the principle of equal treatment between nationals and non-nationals could not be bargained away, even with the consent of the workers concerned. A departure from basic rights was only allowed if a Convention so provided, and such was not the case in respect of Convention No. 97. Finally, while acknowledging that the legislative amendments contributed to an improvement of the situation, the Workers' members were of the opinion that equality of treatment had not yet been attained. They urged the Government to adopt new amendments which would ensure that migrant workers, the labour force necessary for the prosperity of Malaysia, would be treated on an equal footing with nationals as was the case before 1993. The Government should keep the ILO informed of the developments in this case and of the difficulties encountered in practice, and it should be recalled that technical assistance from the ILO was available upon request. They clarified that they would like to receive statistical information concerning the number and the gravity of occupational accidents suffered by migrant workers in relation to the total number of occupational accidents.

The Employers' member of Malaysia endorsed the explanation provided by the Government representative of the practical difficulties involved in providing the foreign workers concerned with coverage under the Employees Social Security Scheme, and the consequent need for them to be covered by the Workmen's Compensation Scheme. In addition to the reasons invoked by the Government representative, she indicated that, under the Employees Social Security Scheme, invalidity pensions and survivors' benefits only became due when workers had completed a certain qualifying contribution period. Foreign workers who had not met this requirement would not be eligible to receive compensation under the Employees Social Security Scheme. However, the Workmen's Compensation Scheme required no such qualifying period before compensation became payable. The coverage of the foreign workers in question by the Employees Social Security Scheme would therefore be detrimental to their interests. Moreover, she pointed out that the payment of a lump sum to these workers instead of periodic payments did not constitute discrimination. Indeed, it ensured that they were paid compensation even if they did not meet the eligibility requirements of the Employees Social Security Scheme and were paid an upfront lump sum before they left the country. In view of the particular circumstances of the case, she urged the Committee to adopt a pragmatic approach, since it was clear that the policy in question had been established for the purpose of safeguarding the interests of the foreign workers concerned.

The Workers' member of Korea pointed out that Asian countries were experiencing important labour flows which were contributing to the economic growth of the region. The workers were attracted to countries such as Malaysia, where employment opportunities as well as wages were better. In this context, foreign workers were often placed in a precarious situation and were the victims of discrimination in comparison to national workers. Since the priority of migrant workers was to find employment, they were not really concerned about the risks which they could face in their work and did not therefore worry about the consequences of an accident in the workplace. States which accepted these workers must take the necessary measures to protect such vulnerable workers against accidents. In the case of an accident, appropriate compensation, similar to that received by national workers, without any discrimination, must be guaranteed. This obligation existed even in the case of illegal foreign workers. He was therefore surprised that such agreements had been concluded by the States which sent the migrant workers and that these workers had accepted such arrangements. However, it was important to remember that migrant-sending countries were not always in the best position to negotiate.

The Workers' member of Spain pointed out that it was a matter of concern that, despite the geographical distance between Malaysia and Europe, the same problem still occurred, namely difference of treatment for migrant workers. Nevertheless there was one difference. In Europe, there was difference of treatment in practice, even though it was prohibited by national legislation and constitutions. It appeared difficult to understand that these differences existed, and yet efforts were being made to eliminate them. The Committee of Experts had observed that in Malaysia the inequalities in treatment were contained in the legislation, particularly with regard to benefits in case of work accidents, which were lower for migrant workers. He stated that this inequality could not be justified by saying that these conditions had been accepted in the country of origin of the workers. He pointed out that the only manner in which the Government of Malaysia could bring its legislation into conformity with the Convention was by eliminating any reference to difference of treatment between nationals and migrant workers. Finally, he endorsed the statements made by the Workers' members.

The Employers' member of the Islamic Republic of Iran insisted on the fact that the Committee should take a practical approach concerning the case of Malaysia, since a strict interpretation of the Convention would not be in the interests of the workers concerned. Moreover, he emphasized that the measures taken by the Government were fully in the interests of foreign workers.

The Workers' member of Malaysia endorsed the explanations provided by the Government representative and stated that the Government was doing all that was necessary to safeguard the welfare and interests of foreign workers. The fact that accident compensation coverage for foreign workers had been extended outside working hours and that compensation payments were made within a period of one week illustrated the concern of the Government for this category of workers.

The Government representative thanked all of the speakers for the interest that they had expressed in the case and took note of their comments. He did not consider that it was necessary to reply to each of the points that had been raised, but felt that instead a few words would be appropriate on the manner in which the Conference Committee approached its work. The Conference Committee dealt with cases concerning individual governments and played the role of the enforcement arm of the ILO. In so doing, it prosecuted, and even persecuted, the governments in question, who were subjected to great pressure. It was very rare in these proceedings for there to be expressions of mercy or indications of encouragement. As a result, some countries might be frightened into compliance. However, in general, most countries had become immunized. The work of the Committee was therefore becoming increasingly unproductive and even counterproductive. The question needed to be raised as to whether the Conference Committee was conducting its business in the most effective way. The Committee was of great importance and needed to function effectively all the time. A team approach should therefore be adopted to improving compliance with Conventions in order to help member States overcome problems of implementation. The Committee would therefore need to promote its role as a facilitator of progress. A distinction should also be made between genuine problems of application and real cases of violations. In particular, the member States concerned should be treated with honour and respect so that no delegates were left discouraged, and therefore demotivated.

The Employers' members expressed surprise at the reaction of the Government representative to a discussion which had appeared relatively mild, factual and appropriate to the circumstances of the case. The mandate of the Conference Committee was quite clear in this respect. The purpose of bringing cases to the Committee for its examination was to highlight and illuminate problems arising in the application of ratified Conventions and to provide assistance in overcoming such problems. This was what had occurred in this case. No speakers had allowed their interventions to go beyond the scope of the report of the Committee of Experts and the intention was to assist the Government in achieving full compliance with the Convention.

The Workers' members supported the comments of the Employers' members concerning the last intervention made by the Government representative. In the case of Malaysia, the Committee had limited itself to the execution of its mandate, as defined by article 7 of the Standing Orders, by ensuring that the provisions of the Convention were applied in practice. In this case, as in other cases, the different interventions in the Committee concerning the case of Malaysia had been of a serene nature and were fully in line with the mandate of the Committee. Finally, they recalled that they had requested the Government to indicate the difficulties encountered in the implementation of the Convention in order to seek solutions together.

The Committee noted the information given by the Government representative as well as the subsequent detailed discussion. The Committee, like the Committee of Experts, considered that the level of benefit in case of industrial accident was lower for foreign workers than for nationals. The Committee stressed that equality of treatment between nationals and foreign workers could not be bargained away, even with the consent of the workers, and that legislative amendments which had been adopted only served to increase the ceiling on lump-sum benefits and did not provide for periodic payment. It once again insisted that the Government adopt necessary measures so that foreign workers benefited from the same conditions as nationals. The Committee asked the Government to furnish detailed information to the Committee of Experts and hoped to be in a position to look at the case again next year, if it was judged appropriate.

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This case was discussed by the Committee together with Convention No. 19 above, as follows:

A Government representative first recalled that the Employees' Social Security Act, 1969, only provided for compulsory coverage of employees earning not more than Malaysia Ringgits 2,000 per month, and that as from April 1993 the coverage of certain categories of Malaysian nationals and migrant workers had been transferred to the Workmens' Compensation Act. He repeated that this transfer was essentially due to enforcement and administrative constraints, particularly regarding the remittance of payment of accident compensation benefits to the next of kin or dependants of workers in their home country.

He further explained that this transfer of coverage had been agreed upon by the workers' and employers' organizations and the Government, both at the Social Security Council Board and the National Labour Advisory Council. Certain categories of Malaysian nationals in the service sector and the civil service were not covered by the Employees' Social Security Act. Migrant workers in Malaysia were essentially employed on a fixed-term contract, and their terms and conditions of employment were provided for in contracts voluntarily entered into between them and their respective employers.

The Government representative added that this arrangement had been endorsed by both the Malaysian Government and the respective migrant-sending governments. He emphasized that migrant workers enjoyed equal protection and treatment as the Malaysian nationals covered by the Workmen's Compensation Act. In addition, the Government had taken action to amend certain provisions of this Act to enhance the compensation payable to the workers covered and their beneficiaries. This proposed amendment had been tabled to Parliament and would be transmitted to the Committee of Experts as soon as they have been passed in Parliament. He concluded by emphasizing that laws and regulations and policies on labour in Malaysia were generally in conformity with the provisions of both of the Conventions.

The Employers' members noted that the changes made in Malaysia apparently created a difficulty concerning the application of these Conventions. They recalled that the Government representative had assured that it was uniquely for administrative reasons and to ensure better management in the long term that foreign workers had been transferred from one system to another. They observed, however, that the new system provided for a level of benefit lower than the previous one. While the Conventions did not set forth the level of benefits, they stipulated that migrant workers should be treated on an equal basis as national workers. As long as Malaysian workers continued to be covered by a scheme offering a noticeably higher level of benefits, there was a divergence with the provisions of the Conventions. Having received the agreement of the migrant workers' countries of origin did not change the situation.

They noted the information supplied by the Government about a draft Bill submitted to Parliament. It was not, however, certain that the suggested amendment would suffice to respond fully to the concerns of the Committee of Experts. The Government should supply a written detailed report concerning the modifications introduced into the legislation to ensure its conformity with the provisions of the Conventions for examination by the Committee of Experts.

The Workers' members noted that migrant workers were among the most vulnerable of any labour force in the globalization of the economies, and considered it particularly important for the ILO to focus on compliance with standards pertaining to migrant workers. That was why the Workers' members wished to discuss this case about Malaysia, where migrant workers were indispensable to the economy, and to draw attention to the situation of migrant workers. They agreed with the Employers' members that the two Conventions contained very precise obligations. Referring to the difference of protection under the two schemes noted by the Committee of Experts, they insisted that migrant workers should enjoy no less favourable treatment regarding accident compensation than nationals, and that such equal treatment could be ensured only by reintegrating foreign workers to the Employees' Social Security Scheme under the same conditions as Malaysian nationals.

The Workers' member of Malaysia confirmed that action was being taken to enhance the benefit under the Workmen's Compensation Act: the proposed amendments were discussed at the Advisory Council, a tripartite body at the national level, and the Bill was now in Parliament. He recognized the problems encountered by the Government in extending the benefits of the Employees' Social Security Scheme to other workers and believed that the proposed amendment would answer the concerns expressed by this Committee.

The Workers' member of Turkey referred to frequently observed racism and xenophobia and stated that, although it was difficult to eradicate discriminatory feelings, at least discrimination in legislation should be eliminated. Recalling the rapid economic development of Malaysia and the important role played by migrant workers there, and as a Worker member from a country which was sending millions of migrant workers mainly to Europe, the speaker hoped that the amendment of the Malaysian legislation, in line with these Conventions, would be a positive example for other countries.

The Workers' member of Australia supported the Workers' members' statement concerning the choice of this case to draw attention to the issue of migrant workers, on which the Committee of Experts explicitly commented in paragraph 59 of its General Report in 1995. He referred to the discussion in the March session of the Governing Body which proved the particular significance of these Conventions, and also to a report prepared by the ILO earlier this year on migrant workers in the construction industry, where high rates of employment injury among migrant workers were noted. The speaker considered that the Government was moving towards a resolution of the problem and looked forward to examining the amendments referred to when adopted.

The Government representative reiterated that the Workmen's Compensation Act covered not only migrant workers but also certain categories of Malaysian nationals, that is, these two categories were given the same treatment.

The Workers' members stressed that the purpose of the transfer from one scheme to another was irrelevant; so was the agreement by the social partners; likewise the agreement between governments. The only principle here was that migrant workers should receive no less favourable treatment regarding accident compensation than national workers, in compliance with the two Conventions in question.

The Committee took note of the information provided by the Government representative. The Committee noted that since 1 April 1993 the system of social security had contained inequalities of treatment which ran counter to the provisions of the two Conventions concerning the rights of foreign workers to accident compensation. The Committee noted with interest that amendments to the Workmen's Compensation Act had recently been submitted to Parliament. The Committee therefore hoped that the Government would in the very near future take all necessary measures to reintegrate foreign workers into the same system as nationals so that, as was previously the case, they would be able to enjoy equal treatment in accordance with the relevant provisions of the two Conventions in question. The Committee hoped that, in its next reports due this year on the application of these two Conventions, the Government would provide precise information which would enable the Committee to note that the situation has been settled.

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Malaysia – Sabah (ratification: 1964)

Article 1(a) of the Convention. Information on migration flows. The Committee takes note of the statistical information provided by the Government in its report on labour migration flows. It notes in particular that the large majority of foreign workers in 2018 were nationals of Indonesia and the Philippines (137,452 out of the 139,025 workers who applied for a new permit or the renewal of their permit) and that most of them worked in the agricultural sector (95,832 workers).

Article 1(c). Special agreements. In its last comment, the Committee requested the Government to provide information on the bilateral agreements concluded with other Members on labour migration. In its report, the Government indicates that the existing bilateral agreements include specific clauses on confidentiality, restricting the possibility to disclose their content. In this regard, the Committee recalls that Article 1(c) requires to make these agreements available on request to the International Labour Office and to other Members. The Committee also refers to the ILO General Principles and Operational Guidelines for Fair Recruitment and Definition of Recruitment Fees and Related Costs inviting Members to make the international agreements on labour migration publicly available. Therefore, the Committee requests the Government to communicate samples of the existing bilateral agreements on international labour migration to the Office and invites the Government to consider making these agreements publicly available.

Articles 2 and 4. Information and assistance to migrant workers. In its last comment, the Committee requested the Government to communicate on the specific measures adopted to provide information to migrant workers in Sabah on their rights in relation to employment. According to the Government, the Labour Department has taken a number of measures to raise awareness and disseminate information to all workers, through dialogue and engagement with stakeholders, and that conducted interviews in the context of the labour inspections. While taking note of this information, the Committee requests the Government to provide detailed information on the activities of the Labour Department that aim specifically at raising awareness and providing information on labour rights in sectors that employ a large number of migrant workers, such as the agricultural sector.

Article 3. Misleading propaganda. The Committee previously requested the Government to inform on the measures adopted to prevent that migrant workers coming into Sabah be subjected to erroneous information from intermediaries. In this regard, the Government indicates that the adverse impact of irregular migration and the importance of proper channels for regular migration are being discussed in the context of the Sabah Labour Conference (KONPENS) that is held twice a year with the participation of Government agencies, and workers’ and employers’ representatives, and in the context of smaller programmes such as dialogue sessions and engagements with relevant stakeholders. Noting this information, the Committee requests the Government to provide detailed information on the supervision of private employment agencies (including on licencing or accreditation procedures and any inspections to which they may be liable), and also on penalties imposed when these agencies, other intermediaries or employers disseminate misleading information to migrant workers.

Article 6. No less favourable treatment. Complaint mechanisms. In its last comment, the Committee requested the Government to provide information on the complaint mechanisms available to migrant workers who are subject to less favourable treatments, referring in particular to section 118B of the Sabah Labour Ordinance that prohibit discrimination against non-residents. The Committee notes the indications by the Government that: (1) foreign workers, like nationals, can file complaints under Chapter II A of the Sabah Labour Ordinance and that such complaints are investigated within 24 hours by a special enforcement team; (2) foreign workers involved in litigations may also apply for special permits to the Immigration Department of Malaysia to remain in the country while waiting for the outcome of their case; (3) the Sabah Labour Department assists them by providing letters confirming that their cases are pending before the court; and (4) no cases on discrimination have been reported to the Department of Labour. In this regard, the Committee recalls that the absence of complaints on discrimination submitted to the Department of Labour may indicate a fear of reprisals or negative consequences for the workers concerned. The Committee requests the Government to provide detailed information on: (i) the activities conducted to raise awareness on the existing complaint mechanisms; (ii) the number of special permits issued to migrant workers who have filed complaints while their cases are pending; (iii) the number of cases detected or reported to the Department of Labour or any other authorities on the less favourable treatment of migrant workers than nationals, in relation with matter covered by Article 6 of the Convention; and (iv) information on the outcome of these cases.

Foreign domestic workers. The Committee recalls that domestic workers are excluded from the scope of application of the Minimum Wage Order of 2012 and that, in its last comment, it requested the Government to indicate the measures adopted to ensure that foreign domestic workers are not treated less favourably than nationals with regard to their working conditions. The Government states that due to high levels of informality in this sector, the collection of relevant data is particularly challenging and that the comparison of earnings between national and foreign domestic workers is not available; and that periodic meetings are organized with the embassies of the sending countries to inform the authorities on changes in policy and legislation regarding domestic workers. The Committee requests the Government to adopt effective measures to ensure that foreign domestic workers are not treated less favourably than nationals with respect to matters enumerated under Article 6 (such as remuneration, accommodation, collective bargaining, social security, legal proceedings, etc.). Furthermore, noting that domestic workers are again excluded from the scope of application of the new Minimum Wage Order, adopted in 2020, the Committee refers the Government to its comment on the application of the Equal Remuneration Convention, 1951 (No. 100), by Malaysia.

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Article 6(1)(a) of the Convention. No less favourable treatment. Foreign worker levy. In its previous comments, the Committee had noted that in several sectors, an annual foreign worker levy was to be paid to the Immigration Department and that there was an ambiguity as to whether this levy could be deducted from the workers’ wage. The Committee notes that in its report, the Government indicates that: (1) on 1 January 2018, a policy was introduced to give effect to the Government’s intention that all levies imposed on the hiring of foreign workers shall be borne by employers; and (2) a Steering Committee on the Multi-tier Levy was established to examine the impact of the levy system. Recalling that the deduction of levies from the wages of foreign workers may result in unfavourable treatment of these workers as compared to nationals, contrary to Article 6(1)(a) of the Convention, the Committee asks the Government to indicate what is: (i) the current legal situation in light of the new policy introduced in 2018 and the expected results from these changes (ii) the exact role of the newly established Steering Committee on the Multi-tier Levy and how it relates to this intention; and (iii) the outcome of the examination conducted by the Steering Committee on the deduction of the levies.

Article 6(1)(b). No less favourable treatment. Social security benefits. In its previous comments, the Committee urged the Government to adopt measures to end the differences in treatment between nationals and foreign workers with respect to the payment of social security benefits, and in particular with regard to compensations in cases of industrial injuries. In this regard, the Committee notes the conclusions adopted in 2018 by the Committee on the Application of Standards (CAS) of the International Labour Conference on the application of the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19), by Malaysia Peninsula and Sarawak. The Committee notes with satisfaction the information provided by the Government that foreign workers are now covered under the Employees’ Social Security Act.

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

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The Committee notes with regret that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2015.

Repetition

Article 1 of the Convention. Information on migration flows. The Committee notes from the Government’s report that between January and July 2014, the number of migrant workers employed in Sabah was 100,112, among whom there were 60,856 male and 25,522 female Indonesian workers, and 8,841 male and 3,288 female Filipino workers. The large majority of migrant workers were employed in agriculture (73,891), followed by manufacturing (7,520), construction (6,494), domestic work (5,266) and social and personal services (2,959). The Committee requests the Government to continue to provide statistical information, disaggregated by sex and nationality, on the number of migrant workers employed in Sabah, and an indication of the sectors in which they are employed.

Articles 2 and 4. Information and assistance to migrant workers. The Committee notes the Government’s statement that all migrant workers are covered by the Labour (Contents of Contract) (Sabah) Rules 2008, including domestic workers regardless of their nationality and salary (below or beyond 2,500 Malaysian ringgit (MYR)). The Committee requests the Government to provide the text of the Labour (Contents of Contract) (Sabah) Rules 2008, and further information on the practical measures taken by the Labour Department to inform migrant workers about the 2008 Rules, as well as their rights and obligations set out in the national legislation, and the results achieved. Please also provide information on the specific services and assistance, including accurate information on the living and working conditions and contracts of employment, given to migrant domestic workers.

Article 3. Misleading propaganda. The Committee recalls the relevance of Article 3 for the protection of workers from misleading information stemming from intermediaries who may have an interest in encouraging migration in any form to take place and recognizes the pivotal role of information and knowledge in preventing irregular labour migration (see General Survey on migrant workers, 2016). In the absence of any further information in this regard, the Committee once again requests the Government to provide full information on the specific measures taken or envisaged to prevent migrant workers coming into Sabah to be subjected to erroneous information, including from private intermediaries.

Article 6. Equality of treatment. Regarding the effective enforcement of the principle of equal treatment, the Government reiterates that the Labour Department has not received complaints regarding discrimination in respect of terms and conditions of employment from migrant workers pursuant to section 118B of the Labour Ordinance (non-discrimination in respect of conditions of employment). The Government further indicates that remedies are provided to both local and foreign domestic workers in a regular situation, thereby guaranteeing equal treatment in this regard; the Labour Department also organizes social dialogues to raise awareness about employers’ obligations and workers’ rights. The Committee notes that the Human Rights Commission of Malaysia (SUHAKAM) indicates in its 2013 Annual Report that its Sabah Office received 11 complaints from Malaysians and migrant workers relating to employment, including wages. In most cases, the Human Rights Commission sought assistance from the Labour Department to resolve complaints. The Committee recalls the importance of effective dispute resolution mechanisms and accessible and speedy complaints procedures. It considers that where no cases or complaints, or very few, are being lodged this may indicate a lack of such mechanisms and procedures, a lack of awareness of rights, a lack of confidence in the existing procedures or fear of reprisal. The Committee once again requests the Government to examine whether the existing dispute resolution mechanisms available to migrant workers are adequate and effective to address issues of less favourable treatment without fear of reprisals, and provide information on any steps taken in this regard. In this connection, please indicate whether migrant workers can obtain an extension of stay while their case is pending. The Committee also requests the Government to provide information on measures taken to raise awareness among migrant workers, including migrant domestic workers, about available dispute resolution mechanisms to address issues of less favourable treatment, and on the number and nature of complaints submitted by non-resident employees pursuant to section 118B of the Labour Ordinance (Sabah Cap. 67) concerning discrimination with respect to the matters enumerated in Article 6(1)(a)(i) of the Convention, as well as the sanctions imposed and remedies provided.

Domestic workers. The Committee notes that as of July 2014 there were a total of 169,043 foreign domestic workers, of which 117,584 nationals from Indonesia, 40,299 from the Philippines and 5,800 from Cambodia. The Committee notes that the Minimum Wage Order 2012 excludes domestic workers from its application (section 3), which, according to the Government, is because the cost structure for the recruitment of Indonesian domestic workers is covered by the Protocol to Amend the Memorandum of Understanding on the Recruitment and Placement of Indonesian Domestic Workers 2006. However, the Committee notes that according to Article 5.3 of the Protocol, the employer only has to pay a monthly wage “determined by the market forces taking into account the indicative range of wages to be agreed upon by the Parties”. Furthermore, the Government indicates that the wage of Filipino domestic workers is set by the market forces for which it is set at a minimum of MYR1,500 and above. The Committee notes that a draft agreement to send domestic workers from Cambodia to Malaysia is under negotiation. The Committee requests the Government to provide a copy of any bilateral agreement or arrangement relating to the protection of migrant workers, including domestic workers. Furthermore, the Committee asks the Government to provide information on the specific measures taken to ensure that Indonesian, Filipino and Cambodian domestic workers, are not treated less favourably than nationals with respect to remuneration, and that no discrimination exists among groups of migrant workers on the ground of nationality or sex. Please provide statistical data, disaggregated by sex and origin, on the number of foreign and national domestic workers and their corresponding earnings, specifying the payments in cash and in kind.

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The Committee notes with regret that the Government’s report has not been received. It is therefore bound to repeat its previous comments initially made in 2017.

Repetition

Article 6 of the Convention. Equal treatment. Minimum wages and the foreign worker levy. The Committee recalls its previous comments in which it noted that the National Wages Consultative Council Act 2011 (Act 732) and the Minimum Wages Order 2012 provided for a regional monthly minimum wage for Sabah covering national and foreign workers, but exclude domestic workers from their application. It also recalls that an annual foreign worker levy in the plantation sector, agricultural and fishing sector, manufacturing sector, construction sector, and in the services sector, and for domestic workers, is to be paid to the Immigration Department. The Government also indicated that, as of 1 January 2014, all employers employing foreign workers should pay the minimum wage and would be allowed to deduct the foreign worker levy and the cost of accommodation from migrant workers’ wages, but not from the minimum wage. As the Government had indicated in the past that the levy was paid by the employer and could not be deducted from the wages of the foreign worker, the Committee considered that ambiguity existed regarding the foreign worker levy and permissible deductions from minimum wages of foreign workers, since the establishment of the regional minimum wage for Sabah.

The Committee notes that the Government’s report has not been received. It notes however that the Government provided information in 2016 confirming the Malaysian government policy requiring the levy to be borne by the foreign worker. The Government however indicates that pursuant to section 113(4) of the Sabah Labour Ordinance (Cap 67), no deductions of levy and accommodation costs are allowed, except at the request in writing of the employee and with prior permission by the competent authority. The Government adds that when approving such requests, the wish of the foreign worker to pay the levy in instalments or by way of a lump sum, is being taken into account; not allowing the deduction of the levy from wages of foreign employees, despite their written request, would only burden these employees. While noting these explanations, the Committee remains concerned that, in practice, employers may still deduct the amount of the levy from the minimum wage of the foreign worker, which would result in less favourable treatment of these workers with nationals, contrary to Article 6(1)(a) of the Convention. Noting further that the Government had previously reported that the levy was meant to help defray the costs of maintenance of the facilities and infrastructure used by foreign workers during their stay in the country, the Committee considers that, especially when levy rates are high, imposing the burden of the levy on the foreign worker would not be equitable and could have a negative impact on the wages and general working conditions and rights of migrant workers. Regarding deductions for costs of accommodation, the Committee notes the Government’s explanations that such deductions will not be allowed if it is agreed that the employer has the obligation to provide free accommodation to the employees. The Committee asks the Government to clarify the reasons for laying the burden of maintenance costs of facilities and infrastructure, through payment of an annual levy, with the foreign worker, and to indicate whether any consideration is being given to shift the burden of the foreign worker levy onto the employer, or to examine alternative ways to compensate for the so-called costs for facilities and infrastructure generated by foreign workers during their stay. The Committee also asks the Government to specify the applicable legal provisions or policy prohibiting levy deductions from the minimum wage, and to indicate the measures taken to ensure that, in practice, employers do not deduct the levy amount from the minimum wages paid to foreign workers. Recalling that the Government had previously indicated that it was willing to examine the impact of the levy system on the working conditions and equal treatment of migrant workers, including wages, the Committee requests the Government to undertake such an assessment and provide information on its results and any follow-up given to it.

Article 6(1)(b) of the Convention. Equality of treatment with respect to social security. Employment injury benefits. The Committee notes that the Government’s report was not received despite the Committee’s longstanding comments regarding differences in treatment between nationals and temporary foreign workers with respect to payment of social security benefits in the case of industrial injuries. The differences relate to the Workmen’s Compensation Scheme (WCS), which guarantees to foreign workers employed in the country for up to five years only a lump-sum payment of a significantly lower amount than the periodical payments to victims of industrial injuries provided under the Employees’ Social Security Scheme (ESS), while Malaysian nationals and foreign workers permanently residing in Malaysia (Sabah) continue to be covered by the ESS. The Government had previously indicated that it was looking into various options, with the participation of all stakeholders with a view to bringing the national legislation in line with the requirements of the Convention. The Committee recalls that it has been raising this same issue since 1993 in the context of its comments under the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19), with respect to Peninsular Malaysia and Sarawak. The Committee refers the Government to its observation on Convention No. 19 which notes the discussion on the application of that Convention in Peninsular Malaysia and Sarawak by the Conference Committee on the Application of Standards (CAS) in June 2017. The Committee notes that the CAS once again called upon the Government to take immediate, pragmatic and effective steps to ensure that the Convention’s requirement of equal treatment of migrant workers and national workers was met and to expedite its efforts to this effect, as the need for progress was becoming increasingly urgent. The Committee urges the Government to take into account its comments on the application in Peninsular Malaysia and Sarawak of Convention No. 19 when addressing the issue of equal treatment between migrant workers and nationals with respect to industrial injuries in Sabah.

Other social security benefits. With respect to other social security benefits, including medical care, old-age, invalidity and survivor’s pensions, as well as sickness and maternity benefits, the Committee notes that the Government has not provided any further information in this respect. Taking into account the large number of foreign workers concerned, the Committee urges the Government to provide information on the steps taken, including the conclusion of bilateral or multilateral agreements, to ensure that migrant workers do not receive treatment which is less favourable than that applied to nationals or foreign workers permanently residing in the country with respect to all social security benefits.

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

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2015.

Repetition

Article 1 of the Convention. Information on migration flows. The Committee notes from the Government’s report that between January and July 2014, the number of migrant workers employed in Sabah was 100,112, among whom there were 60,856 male and 25,522 female Indonesian workers, and 8,841 male and 3,288 female Filipino workers. The large majority of migrant workers were employed in agriculture (73,891), followed by manufacturing (7,520), construction (6,494), domestic work (5,266) and social and personal services (2,959). The Committee requests the Government to continue to provide statistical information, disaggregated by sex and nationality, on the number of migrant workers employed in Sabah, and an indication of the sectors in which they are employed.

Articles 2 and 4. Information and assistance to migrant workers. The Committee notes the Government’s statement that all migrant workers are covered by the Labour (Contents of Contract) (Sabah) Rules 2008, including domestic workers regardless of their nationality and salary (below or beyond 2,500 Malaysian ringgit (MYR)). The Committee requests the Government to provide the text of the Labour (Contents of Contract) (Sabah) Rules 2008, and further information on the practical measures taken by the Labour Department to inform migrant workers about the 2008 Rules, as well as their rights and obligations set out in the national legislation, and the results achieved. Please also provide information on the specific services and assistance, including accurate information on the living and working conditions and contracts of employment, given to migrant domestic workers.

Article 3. Misleading propaganda. The Committee recalls the relevance of Article 3 for the protection of workers from misleading information stemming from intermediaries who may have an interest in encouraging migration in any form to take place and recognizes the pivotal role of information and knowledge in preventing irregular labour migration (see General Survey on migrant workers, 2016). In the absence of any further information in this regard, the Committee once again requests the Government to provide full information on the specific measures taken or envisaged to prevent migrant workers coming into Sabah to be subjected to erroneous information, including from private intermediaries.

Article 6. Equality of treatment. Regarding the effective enforcement of the principle of equal treatment, the Government reiterates that the Labour Department has not received complaints regarding discrimination in respect of terms and conditions of employment from migrant workers pursuant to section 118B of the Labour Ordinance (non-discrimination in respect of conditions of employment). The Government further indicates that remedies are provided to both local and foreign domestic workers in a regular situation, thereby guaranteeing equal treatment in this regard; the Labour Department also organizes social dialogues to raise awareness about employers’ obligations and workers’ rights. The Committee notes that the Human Rights Commission of Malaysia (SUHAKAM) indicates in its 2013 Annual Report that its Sabah Office received 11 complaints from Malaysians and migrant workers relating to employment, including wages. In most cases, the Human Rights Commission sought assistance from the Labour Department to resolve complaints. The Committee recalls the importance of effective dispute resolution mechanisms and accessible and speedy complaints procedures. It considers that where no cases or complaints, or very few, are being lodged this may indicate a lack of such mechanisms and procedures, a lack of awareness of rights, a lack of confidence in the existing procedures or fear of reprisal. The Committee once again requests the Government to examine whether the existing dispute resolution mechanisms available to migrant workers are adequate and effective to address issues of less favourable treatment without fear of reprisals, and provide information on any steps taken in this regard. In this connection, please indicate whether migrant workers can obtain an extension of stay while their case is pending. The Committee also requests the Government to provide information on measures taken to raise awareness among migrant workers, including migrant domestic workers, about available dispute resolution mechanisms to address issues of less favourable treatment, and on the number and nature of complaints submitted by non-resident employees pursuant to section 118B of the Labour Ordinance (Sabah Cap. 67) concerning discrimination with respect to the matters enumerated in Article 6(1)(a)(i) of the Convention, as well as the sanctions imposed and remedies provided.

Domestic workers. The Committee notes that as of July 2014 there were a total of 169,043 foreign domestic workers, of which 117,584 nationals from Indonesia, 40,299 from the Philippines and 5,800 from Cambodia. The Committee notes that the Minimum Wage Order 2012 excludes domestic workers from its application (section 3), which, according to the Government, is because the cost structure for the recruitment of Indonesian domestic workers is covered by the Protocol to Amend the Memorandum of Understanding on the Recruitment and Placement of Indonesian Domestic Workers 2006. However, the Committee notes that according to Article 5.3 of the Protocol, the employer only has to pay a monthly wage “determined by the market forces taking into account the indicative range of wages to be agreed upon by the Parties”. Furthermore, the Government indicates that the wage of Filipino domestic workers is set by the market forces for which it is set at a minimum of MYR1,500 and above. The Committee notes that a draft agreement to send domestic workers from Cambodia to Malaysia is under negotiation. The Committee requests the Government to provide a copy of any bilateral agreement or arrangement relating to the protection of migrant workers, including domestic workers. Furthermore, the Committee asks the Government to provide information on the specific measures taken to ensure that Indonesian, Filipino and Cambodian domestic workers, are not treated less favourably than nationals with respect to remuneration, and that no discrimination exists among groups of migrant workers on the ground of nationality or sex. Please provide statistical data, disaggregated by sex and origin, on the number of foreign and national domestic workers and their corresponding earnings, specifying the payments in cash and in kind.

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Article 6 of the Convention. Equal treatment. Minimum wages and the foreign worker levy. The Committee recalls its previous comments in which it noted that the National Wages Consultative Council Act 2011 (Act 732) and the Minimum Wages Order 2012 provided for a regional monthly minimum wage for Sabah covering national and foreign workers, but exclude domestic workers from their application. It also recalls that an annual foreign worker levy in the plantation sector, agricultural and fishing sector, manufacturing sector, construction sector, and in the services sector, and for domestic workers, is to be paid to the Immigration Department. The Government also indicated that, as of 1 January 2014, all employers employing foreign workers should pay the minimum wage and would be allowed to deduct the foreign worker levy and the cost of accommodation from migrant workers’ wages, but not from the minimum wage. As the Government had indicated in the past that the levy was paid by the employer and could not be deducted from the wages of the foreign worker, the Committee considered that ambiguity existed regarding the foreign worker levy and permissible deductions from minimum wages of foreign workers, since the establishment of the regional minimum wage for Sabah.

The Committee notes that the Government’s report has not been received. It notes however that the Government provided information in 2016 confirming the Malaysian government policy requiring the levy to be borne by the foreign worker. The Government however indicates that pursuant to section 113(4) of the Sabah Labour Ordinance (Cap 67), no deductions of levy and accommodation costs are allowed, except at the request in writing of the employee and with prior permission by the competent authority. The Government adds that when approving such requests, the wish of the foreign worker to pay the levy in instalments or by way of a lump sum, is being taken into account; not allowing the deduction of the levy from wages of foreign employees, despite their written request, would only burden these employees. While noting these explanations, the Committee remains concerned that, in practice, employers may still deduct the amount of the levy from the minimum wage of the foreign worker, which would result in less favourable treatment of these workers with nationals, contrary to Article 6(1)(a) of the Convention. Noting further that the Government had previously reported that the levy was meant to help defray the costs of maintenance of the facilities and infrastructure used by foreign workers during their stay in the country, the Committee considers that, especially when levy rates are high, imposing the burden of the levy on the foreign worker would not be equitable and could have a negative impact on the wages and general working conditions and rights of migrant workers. Regarding deductions for costs of accommodation, the Committee notes the Government’s explanations that such deductions will not be allowed if it is agreed that the employer has the obligation to provide free accommodation to the employees. The Committee asks the Government to clarify the reasons for laying the burden of maintenance costs of facilities and infrastructure, through payment of an annual levy, with the foreign worker, and to indicate whether any consideration is being given to shift the burden of the foreign worker levy onto the employer, or to examine alternative ways to compensate for the so-called costs for facilities and infrastructure generated by foreign workers during their stay. The Committee also asks the Government to specify the applicable legal provisions or policy prohibiting levy deductions from the minimum wage, and to indicate the measures taken to ensure that, in practice, employers do not deduct the levy amount from the minimum wages paid to foreign workers. Recalling that the Government had previously indicated that it was willing to examine the impact of the levy system on the working conditions and equal treatment of migrant workers, including wages, the Committee requests the Government to undertake such an assessment and provide information on its results and any follow-up given to it.

Article 6(1)(b) of the Convention. Equality of treatment with respect to social security. Employment injury benefits. The Committee notes that the Government’s report was not received despite the Committee’s longstanding comments regarding differences in treatment between nationals and temporary foreign workers with respect to payment of social security benefits in the case of industrial injuries. The differences relate to the Workmen’s Compensation Scheme (WCS), which guarantees to foreign workers employed in the country for up to five years only a lump-sum payment of a significantly lower amount than the periodical payments to victims of industrial injuries provided under the Employees’ Social Security Scheme (ESS), while Malaysian nationals and foreign workers permanently residing in Malaysia (Sabah) continue to be covered by the ESS. The Government had previously indicated that it was looking into various options, with the participation of all stakeholders with a view to bringing the national legislation in line with the requirements of the Convention. The Committee recalls that it has been raising this same issue since 1993 in the context of its comments under the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19), with respect to Peninsular Malaysia and Sarawak. The Committee refers the Government to its observation on Convention No. 19 which notes the discussion on the application of that Convention in Peninsular Malaysia and Sarawak by the Conference Committee on the Application of Standards (CAS) in June 2017. The Committee notes that the CAS once again called upon the Government to take immediate, pragmatic and effective steps to ensure that the Convention’s requirement of equal treatment of migrant workers and national workers was met and to expedite its efforts to this effect, as the need for progress was becoming increasingly urgent. The Committee urges the Government to take into account its comments on the application in Peninsular Malaysia and Sarawak of Convention No. 19 when addressing the issue of equal treatment between migrant workers and nationals with respect to industrial injuries in Sabah.

Other social security benefits. With respect to other social security benefits, including medical care, old-age, invalidity and survivor’s pensions, as well as sickness and maternity benefits, the Committee notes that the Government has not provided any further information in this respect. Taking into account the large number of foreign workers concerned, the Committee urges the Government to provide information on the steps taken, including the conclusion of bilateral or multilateral agreements, to ensure that migrant workers do not receive treatment which is less favourable than that applied to nationals or foreign workers permanently residing in the country with respect to all social security benefits.

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

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Article 1 of the Convention. Information on migration flows. The Committee notes from the Government’s report that between January and July 2014 the number of migrant workers employed in Sabah was 100,112, among whom there were 60,856 male and 25,522 female Indonesian workers, and 8,841 male and 3,288 female Filipino workers. The large majority of migrant workers were employed in agriculture (73,891), followed by manufacturing (7,520), construction (6,494), domestic work (5,266) and social and personal services (2,959). The Committee requests the Government to continue to provide statistical information, disaggregated by sex and nationality, on the number of migrant workers employed in Sabah, and an indication of the sectors in which they are employed.

Articles 2 and 4. Information and assistance to migrant workers. The Committee notes the Government’s statement that all migrant workers are covered by the Labour (Contents of Contract) (Sabah) Rules 2008, including domestic workers regardless of their nationality and salary (below or beyond 2,500 Malaysian ringgit (MYR)). The Committee requests the Government to provide the text of the Labour (Contents of Contract) (Sabah) Rules 2008, and further information on the practical measures taken by the Labour Department to inform migrant workers about the 2008 Rules, as well as their rights and obligations set out in the national legislation, and the results achieved. Please also provide information on the specific services and assistance, including accurate information on the living and working conditions and contracts of employment, given to migrant domestic workers.

Article 3. Misleading propaganda. The Committee recalls the relevance of Article 3 for the protection of workers from misleading information stemming from intermediaries who may have an interest in encouraging migration in any form to take place and recognizes the pivotal role of information and knowledge in preventing irregular labour migration (see General Survey on migrant workers, 2016). In the absence of any further information in this regard, the Committee once again requests the Government to provide full information on the specific measures taken or envisaged to prevent migrant workers coming into Sabah to be subjected to erroneous information, including from private intermediaries.

Article 6. Equality of treatment. Regarding the effective enforcement of the principle of equal treatment, the Government reiterates that the Labour Department has not received complaints regarding discrimination in respect of terms and conditions of employment from migrant workers pursuant to section 118B of the Labour Ordinance (non-discrimination in respect of conditions of employment). The Government further indicates that remedies are provided to both local and foreign domestic workers in a regular situation, thereby guaranteeing equal treatment in this regard; the Labour Department also organizes social dialogues to raise awareness about employers’ obligations and workers’ rights. The Committee notes that the Human Rights Commission of Malaysia (SUHAKAM) indicates in its 2013 Annual Report that its Sabah Office received 11 complaints from Malaysians and migrant workers relating to employment, including wages. In most cases, the Human Rights Commission sought assistance from the Labour Department to resolve complaints. The Committee recalls the importance of effective dispute resolution mechanisms and accessible and speedy complaints procedures. It considers that where no cases or complaints, or very few, are being lodged this may indicate a lack of such mechanisms and procedures, a lack of awareness of rights, a lack of confidence in the existing procedures or fear of reprisal. The Committee once again requests the Government to examine whether the existing dispute resolution mechanisms available to migrant workers are adequate and effective to address issues of less favourable treatment without fear of reprisals, and provide information on any steps taken in this regard. In this connection, please indicate whether migrant workers can obtain an extension of stay while their case is pending. The Committee also requests the Government to provide information on measures taken to raise awareness among migrant workers, including migrant domestic workers, about available dispute resolution mechanisms to address issues of less favourable treatment, and on the number and nature of complaints submitted by non-resident employees pursuant to section 118B of the Labour Ordinance (Sabah Cap. 67) concerning discrimination with respect to the matters enumerated in Article 6(1)(a)(i) of the Convention, as well as the sanctions imposed and remedies provided.

Domestic workers. The Committee notes that as of July 2014 there were a total of 169,043 foreign domestic workers, of which 117,584 nationals from Indonesia, 40,299 from the Philippines and 5,800 from Cambodia. The Committee notes that the Minimum Wage Order 2012 excludes domestic workers from its application (section 3), which, according to the Government, is because the cost structure for the recruitment of Indonesian domestic workers is covered by the Protocol to Amend the Memorandum of Understanding on the Recruitment and Placement of Indonesian Domestic Workers 2006. However, the Committee notes that according to Article 5.3 of the Protocol, the employer only has to pay a monthly wage “determined by the market forces taking into account the indicative range of wages to be agreed upon by the Parties”. Furthermore, the Government indicates that the wage of Filipino domestic workers is set by the market forces for which it is set at a minimum of MYR1,500 and above. The Committee notes that a draft agreement to send domestic workers from Cambodia to Malaysia is under negotiation. The Committee requests the Government to provide a copy of any bilateral agreement or arrangement relating to the protection of migrant workers, including domestic workers. Furthermore, the Committee asks the Government to provide information on the specific measures taken to ensure that Indonesian, Filipino and Cambodian domestic workers, are not treated less favourably than nationals with respect to remuneration, and that no discrimination exists among groups of migrant workers on the ground of nationality or sex. Please provide statistical data, disaggregated by sex and origin, on the number of foreign and national domestic workers and their corresponding earnings, specifying the payments in cash and in kind.

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Article 6(1)(a)(i) of the Convention. Minimum wages and the foreign worker levy. The Committee recalls the National Wages Consultative Council (NWCC) Act 2011 (Act No. 732) and the Minimum Wages Order 2012, which provides for a regional monthly minimum wage of 800 Malaysian ringgit (MYR) for Sabah, to be implemented as of 1 January 2013, and the Minimum Wages (Amendment) Order 2013, which allows certain enterprises to defer payment of minimum wages until 31 December 2013. It also recalls that, under the Minimum Wage Policy (March 2013) issued by the Ministry of Human Resources, employers which implemented minimum wages were allowed to deduct the actual amount of the foreign worker levy on a prorated monthly basis, as well as the cost of accommodation not exceeding MYR50 per month per person. In special circumstances, based on individual merit, the Labour Department may consider applications to deduct the cost of accommodation exceeding MYR50 a month. The Committee notes the Government’s indication that, as of 1 January 2014, all employers employing foreign workers have to pay the above minimum wage, but will be allowed to deduct the levy and the cost of accommodation from migrant workers’ wages, but not from the minimum wage. The Committee considers that allowing the amount of the levy to be deducted from the wages of foreign workers would result in less favourable treatment of these workers than for nationals, contrary to Article 6(1)(a) of the Convention. Further, with respect to the deduction of accommodation costs, the Committee recalls that, where partial payments in kind are authorized, appropriate measures shall be taken to ensure that the value attributed to allowances, such as accommodation costs, is fair and reasonable, and does not lead to unequal treatment between national and migrant workers with respect to remuneration. In view of the ambiguity in the Government’s statement and the Minimum Wage Policy (2013) of the Ministry of Human Resources regarding permissible deductions from minimum wages for foreign workers, the Committee requests the Government to clarify whether the policy document under which employers are allowed to deduct the levy and accommodation costs from the minimum wages of foreign workers is still in force, and to provide a copy of the relevant text. The Committee further requests the Government to take the necessary steps to ensure that employers do not deduct the levy from the wages paid to foreign workers and that where they deduct accommodation costs, it should be fair and reasonable, so as to ensure that no less favourable treatment is applied to them compared with national workers, in conformity with Article 6(1)(a) of the Convention. Recalling that the Government indicated previously that it was willing to examine the impact of the levy system on the working conditions, including wages, and equal treatment of migrant workers, the Committee urges the Government to undertake such an assessment and to provide information on its results and any follow-up.

Article 6(1)(b). Equality of treatment with respect to social security. Employment injury and other social security benefits. The Committee recalls its previous comments regarding differences in treatment between nationals and temporary foreign workers with respect to social security benefits in the case of occupational accidents. The differences relate to the Workmen’s Compensation Scheme (WCS), which guarantees to foreign workers employed in the country for up to five years only a lump-sum payment of a significantly lower amount than the periodical payments for victims of industrial accidents provided under the Employees’ Social Security Scheme (ESS), while Malaysian nationals and foreign workers permanently residing in Malaysia (Sabah) continue to be covered by the ESS. The Government indicated in November 2012 that it was conducting an actuarial study considering the following three options: (i) extension of ESS coverage to foreign workers; (ii) creation of a special scheme for foreign workers under the ESS; or (iii) raising the level of benefit provided under the WCS so as to be equivalent to that of the ESS benefit. The Committee notes that the actuarial study was carried out and that foreign workers are still covered by the WCS, but it notes that the Government is considering extending the coverage of the ESS to foreign workers who are in a regular situation. In this regard, the Committee refers the Government to the comments made under the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19), with respect to Peninsular Malaysia and it notes that in this context the Government proposed to hold a technical consultation with the ILO to evaluate the conformity of the modified ESS scheme with Article 1 of Convention No. 19. The Committee hopes that the technical consultation with the ILO will be organized in the very near future so as to enable the Government to proceed with the modification of the ESS scheme in line with the principle of equality of treatment of foreign workers. Furthermore, the Committee reminds the Government that under Article 6(1)(b) migrant workers should be accorded treatment no less favourable than that which is applied to nationals regarding all social security benefits. The Committee reiterates its request to the Government to provide information on the steps taken, including the conclusion of bilateral or multilateral agreements, to ensure that migrant workers, who are in the country temporarily, do not receive treatment which is less favourable than that applied to nationals or foreign workers permanently residing in the country with respect to all social security benefits.

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

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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

Article 1 of the Convention. Information on migration flows. The Committee notes from the Government’s report that as of 1 April 2012 the number of migrant workers employed in Sabah was 95,815 (84,497 Indonesians (58,109 men and 26,388 women) and 11,318 Filipinos (8,648 men and 2,670 women)). The large majority of migrant workers were employed in agriculture (65,662), followed by domestic service (7,897), manufacturing (6,720), construction (5,742) and social and personal services (4,412). The Committee asks the Government to continue to provide statistical information, disaggregated by sex and nationality, on the number of migrant workers employed in Sabah, and an indication of the sectors in which they are employed.

Articles 2 and 4. Information and assistance to migrant workers. The Committee notes the Government’s statement that all manual migrant workers with the exception of domestic workers whose wages do not exceed 2,500 Malaysian ringgit (MYR) a month are covered by the Labour (Contents of Contract) (Sabah) Rules 2008. The Government further indicates that the Labour Department also carried out normal statutory inspections to places of employment throughout Sabah to enforce the said contracts and Rules and to educate the workers about their rights and obligations set out in the national legislation, but no further information was provided on the specific activities and their outcome in this regard. The Committee requests the Government to provide further information on the practical measures taken by the Labour Department to inform migrant workers about the 2008 Rules, as well as their rights and obligations set out in the national legislation, and the results achieved. Please also provide information on the specific services and assistance, including accurate information on the living and working conditions and contracts of employment, given to migrant domestic workers.

Article 3. Misleading propaganda. The Committee recalls its previous comments in which it underlined the importance of measures to address misleading propaganda as a means to combat irregular migration, including trafficking in persons. The Committee notes the Government’s statement that the Labour Department (Sabah) has not received any complaints from migrant workers regarding abuses or deception when coming into Sabah. Noting further the Government’s confirmation that the Labour Department is taking the necessary steps and preventative measures to ensure that migrant workers coming into Sabah are not subjected to erroneous information, either by the employers or the recruitment agencies regarding living and working conditions, the Committee requests the Government to provide full information on the specific measures taken in this regard.

Article 6. Equality of treatment. The Committee notes that the Government repeats its previous statement that the Labour Department has not received complaints regarding discrimination in respect of terms and conditions of employment from migrant workers pursuant to section 118B of the Labour Ordinance (non-discrimination in respect of conditions of employment), but that complaints regarding cases of discrimination would be brought to the attention of the relevant authority. The Government further states that the Labour Department does not keep data on the number and nature of complaints submitted by non resident employees concerning discrimination with respect to conditions of work, and that data collected on cases of non-compliance include both foreigners and locals. The Government also reiterates in a general manner that the Labour Department organizes briefings for employers and employees to raise awareness of the provisions of the Labour Ordinance. The Committee draws the Government’s attention to the importance of effective dispute resolution mechanisms and accessible and speedy complaints procedures, and considers that where no cases or complaints, or very few, are being lodged this may indicate a lack of such mechanisms and procedures, a lack of awareness of rights, a lack of confidence in the existing procedures or fear of reprisal. The lack of complaints could also indicate that the system of recording violations is insufficiently developed. The Committee stresses the need to collect and publish information on the number and types of cases of non-compliance with the relevant laws and regulations, particularly concerning the matters enumerated in Article 6(1)(a) to (d) of the Convention, detected in sectors where most migrant workers are employed, as a means to raising awareness of the legislation and the avenues of dispute resolution, and in order to examine the effectiveness of the procedures and mechanisms for redress. The Committee therefore requests the Government to make every effort to collect and publish information on cases of non compliance brought by foreign workers as well as on any cases handed down by the courts and any violations detected by the bodies entrusted with monitoring the relevant legislation, the remedies provided and sanctions imposed. It encourages the Government to examine whether the existing dispute resolution mechanisms available to migrant workers are adequate and effective to address issues of less favourable treatment without fear of reprisals, and provide information on any steps taken in this regard. Please also indicate the specific measures taken or envisaged by the Labour Department to raise awareness among migrant workers about the principles and rights enshrined in the Convention, and in the relevant laws and regulations. Please continue to seek and provide information on the number and nature of complaints submitted by non resident employees pursuant to section 118B of the Labour Ordinance (Sabah Cap. 67) concerning discrimination with respect to the matters enumerated in Article 6(1)(a)(i) of the Convention, as well as the sanctions imposed and remedies provided.

Manual workers and domestic workers. Further to its observation, the Committee notes from the statistics provided by the Government that 58,103 Indonesian and 8,526 Filipino male manual workers, and 19,359 Indonesian and 1,836 Filipino female manual workers, as well as six Indonesian and 28 Filipino male domestic workers, and 7,029 Indonesian and 834 Filipino female domestic workers receive wages which do not exceed MYR2,500 a month. The Committee further notes that the Minimum Wage Order 2012 provides for a monthly minimum wage of MYR800 for Sabah (section 4) but excludes domestic workers from its application (section 3). The Committee also notes the Government’s statement that there is no discrimination as manual and domestic migrant workers receive the same wages as nationals and are treated equally. The Committee asks the Government to provide information as follows:

• (i) statistical data, disaggregated by nationality and sex, on the economic sectors in which Indonesian and Filipino manual workers as well as nationals whose wages do not exceed MYR2,500 are employed and the number of nationals employed as domestic worker;
• (ii) the wage levels of Indonesian and Filipino workers as well as nationals in the different sectors of employment;
• (iii) the reasons for excluding domestic workers from the Minimum Wage Order 2012; please provide copies of any rules made by the Minister, pursuant to section 130O(j), for the engagement, repatriation and conditions of work of domestic workers;
• (iv) the specific measures taken to ensure that in practice Indonesian and Filipino manual workers and domestic workers, are not treated less favourably than nationals with respect to the matters enumerated in Article 6(1)(a) to (d) of the Convention.

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The Committee notes that the Government’s report has not been received. It must therefore repeat its previous comments.

Repetition

Article 6(1)(b) of the Convention. Equality of treatment with respect to social security. Employment injury benefits. The Committee recalls its previous comments regarding differences in treatment between nationals and temporary foreign workers with respect to payment of social security benefits in the case of industrial accidents. The differences relate to the Workmen’s Compensation Scheme (WCS), which guarantees to foreign workers employed in the country for up to five years only a lump-sum payment of a significantly lower amount than the periodical payments to victims of industrial accidents provided under the Employees’ Social Security Scheme (ESS), while Malaysian nationals and foreign workers permanently residing in Malaysia (Sabah) continue to be covered by the ESS. The Government indicated in November 2012, that it was conducting an actuarial study considering the following three options: (i) extension of ESS coverage to foreign workers; (ii) creation of a special scheme for foreign workers under the ESS; or (iii) raising the level of benefit provided under the WCS so as to be equivalent to that of the ESS benefit. Upon the completion of the study, continuous engagement with the stakeholders would be carried out before the most suitable option was determined. Further, the Committee understands that the Social Security Organization of Malaysia (SOCSO) is considering the preparation of a technical study on the potential creation of a separate fund and scheme for the coverage of foreign workers, and has requested ILO technical assistance in this regard. With respect to industrial accidents, the Committee hopes that the actuarial study will be finalized shortly, and refers the Government to the comments made under the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19), with respect to Peninsular Malaysia. The Committee notes, however, with regret that the Government has not submitted its report on the application of Convention No. 19, due in 2013, and therefore the Committee has no further information on the progress made with respect to the actuarial study.

Other social security benefits. With respect to other social security benefits, the Committee notes the information provided by the Government regarding the content of the Memoranda of Understanding concluded with countries of origin, which, however, does not specify how it is ensured that no less favourable treatment is applied to migrant workers than to nationals in respect of social security benefits, including medical care, old-age, invalidity and survivor’s pensions, as well as sickness and maternity benefits. Taking into account the large number of foreign workers concerned, the Committee requests the Government to provide information on the steps taken, including the conclusion of bilateral or multilateral agreements, to ensure that migrant workers do not receive treatment which is less favourable than that applied to nationals or foreign workers permanently residing in the country with respect to all social security benefits. The Committee also requests the Government to provide information on any developments regarding the actuarial study with respect to industrial accident benefits and the technical study considered by SOCSO, and the results achieved.

Minimum wages and the foreign worker levy. The Committee notes the National Wages Consultative Council (NWCC) Act 2011 (Act 732) and the Minimum Wages Order 2012 providing for a regional monthly minimum wage of 800 Malaysian ringgit (MYR) for Sabah, to be implemented as of 1 January 2013. It also notes the Guidelines on the Implementation of the Minimum Wages Order 2012 (the “Guidelines”) published by the NWCC (6 September 2012), as well as its press statement of 13 March 2013 on the implementation of minimum wages. The Committee notes that the Minimum Wages Order 2012 applies to “employees” as defined in section 2(1) of the Schedule of the Labour Ordinance (Sabah Cap. 67), thus covering both nationals and foreign workers, but excluding domestic workers from its application. It also notes from the Guidelines that accommodation and food supply are excluded from the minimum wage. The Committee further notes that pursuant to the Minimum Wages (Amendment) Order 2013 certain enterprises were allowed to defer payment of minimum wages until 31 December 2013, but that as of 1 January 2014, all employers employing foreign workers will have to pay the abovementioned minimum wage. The Committee also notes that the document on the Minimum Wage Policy (March 2013) issued by the Ministry of Human Resources states that employers who have implemented minimum wages are allowed to deduct the actual amount of the foreign worker levy on a prorated monthly basis, as well as the cost of accommodation not exceeding MYR50 per month per person. In special circumstances, based on individual merits, the Labour Department may consider applications to deduct the cost of accommodation exceeding MYR50 a month. The Committee had previously noted the Government’s indication that the levy could not be deducted from the wages of the worker. The Committee had in the past also warned against the possible negative impact of such a levy system on the wages and general working conditions and rights of migrant workers, especially when levy rates are high and being deducted from employees’ wages. The Committee therefore considers that allowing, in practice, the amount of the levy to be deducted from the minimum wages of foreign workers may result in less favourable treatment of these workers with nationals, contrary to Article 6(1)(a) of the Convention. Given the ambiguity in the Government’s previous statement and the Minimum Wage Policy (2013) of the Ministry of Human Resources regarding permissible deductions to minimum wages of foreign workers, the Committee requests the Government to clarify whether employers are still allowed to deduct levy and accommodation costs from the minimum wages of foreign workers, and provide the text of the legal provisions or the policy in this regard. The Committee asks the Government to take the necessary steps to ensure that employers do not deduct, in practice, the levy amount from the minimum wages paid to foreign workers and to provide information in this regard. Recalling that the Government had previously indicated that it was willing to examine the impact of the levy system on the working conditions and equal treatment of migrant workers, including wages, the Committee requests the Government to undertake such an assessment and provide information on its results and any follow-up given to it.

The Committee recalls that it raised other matters in a request addressed directly to the Government.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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Article 1 of the Convention. Information on migration flows. The Committee notes from the Government’s report that as of 1 April 2012 the number of migrant workers employed in Sabah was 95,815 (84,497 Indonesians (58,109 men and 26,388 women) and 11,318 Filipinos (8,648 men and 2,670 women)). The large majority of migrant workers were employed in agriculture (65,662), followed by domestic service (7,897), manufacturing (6,720), construction (5,742) and social and personal services (4,412). The Committee asks the Government to continue to provide statistical information, disaggregated by sex and nationality, on the number of migrant workers employed in Sabah, and an indication of the sectors in which they are employed.

Articles 2 and 4. Information and assistance to migrant workers. The Committee notes the Government’s statement that all manual migrant workers with the exception of domestic workers whose wages do not exceed 2,500 Malaysian ringgit (MYR) a month are covered by the Labour (Contents of Contract) (Sabah) Rules 2008. The Government further indicates that the Labour Department also carried out normal statutory inspections to places of employment throughout Sabah to enforce the said contracts and Rules and to educate the workers about their rights and obligations set out in the national legislation, but no further information was provided on the specific activities and their outcome in this regard. The Committee requests the Government to provide further information on the practical measures taken by the Labour Department to inform migrant workers about the 2008 Rules, as well as their rights and obligations set out in the national legislation, and the results achieved. Please also provide information on the specific services and assistance, including accurate information on the living and working conditions and contracts of employment, given to migrant domestic workers.

Article 3. Misleading propaganda. The Committee recalls its previous comments in which it underlined the importance of measures to address misleading propaganda as a means to combat irregular migration, including trafficking in persons. The Committee notes the Government’s statement that the Labour Department (Sabah) has not received any complaints from migrant workers regarding abuses or deception when coming into Sabah. Noting further the Government’s confirmation that the Labour Department is taking the necessary steps and preventative measures to ensure that migrant workers coming into Sabah are not subjected to erroneous information, either by the employers or the recruitment agencies regarding living and working conditions, the Committee requests the Government to provide full information on the specific measures taken in this regard.

Article 6. Equality of treatment. The Committee notes that the Government repeats its previous statement that the Labour Department has not received complaints regarding discrimination in respect of terms and conditions of employment from migrant workers pursuant to section 118B of the Labour Ordinance (non-discrimination in respect of conditions of employment), but that complaints regarding cases of discrimination would be brought to the attention of the relevant authority. The Government further states that the Labour Department does not keep data on the number and nature of complaints submitted by non resident employees concerning discrimination with respect to conditions of work, and that data collected on cases of non-compliance include both foreigners and locals. The Government also reiterates in a general manner that the Labour Department organizes briefings for employers and employees to raise awareness of the provisions of the Labour Ordinance. The Committee draws the Government’s attention to the importance of effective dispute resolution mechanisms and accessible and speedy complaints procedures, and considers that where no cases or complaints, or very few, are being lodged this may indicate a lack of such mechanisms and procedures, a lack of awareness of rights, a lack of confidence in the existing procedures or fear of reprisal. The lack of complaints could also indicate that the system of recording violations is insufficiently developed. The Committee stresses the need to collect and publish information on the number and types of cases of non-compliance with the relevant laws and regulations, particularly concerning the matters enumerated in Article 6(1)(a) to (d) of the Convention, detected in sectors where most migrant workers are employed, as a means to raising awareness of the legislation and the avenues of dispute resolution, and in order to examine the effectiveness of the procedures and mechanisms for redress. The Committee therefore requests the Government to make every effort to collect and publish information on cases of non compliance brought by foreign workers as well as on any cases handed down by the courts and any violations detected by the bodies entrusted with monitoring the relevant legislation, the remedies provided and sanctions imposed. It encourages the Government to examine whether the existing dispute resolution mechanisms available to migrant workers are adequate and effective to address issues of less favourable treatment without fear of reprisals, and provide information on any steps taken in this regard. Please also indicate the specific measures taken or envisaged by the Labour Department to raise awareness among migrant workers about the principles and rights enshrined in the Convention, and in the relevant laws and regulations. Please continue to seek and provide information on the number and nature of complaints submitted by non resident employees pursuant to section 118B of the Labour Ordinance (Sabah Cap. 67) concerning discrimination with respect to the matters enumerated in Article 6(1)(a)(i) of the Convention, as well as the sanctions imposed and remedies provided.

Manual workers and domestic workers. Further to its observation, the Committee notes from the statistics provided by the Government that 58,103 Indonesian and 8,526 Filipino male manual workers, and 19,359 Indonesian and 1,836 Filipino female manual workers, as well as six Indonesian and 28 Filipino male domestic workers, and 7,029 Indonesian and 834 Filipino female domestic workers receive wages which do not exceed MYR2,500 a month. The Committee further notes that the Minimum Wage Order 2012 provides for a monthly minimum wage of MYR800 for Sabah (section 4) but excludes domestic workers from its application (section 3). The Committee also notes the Government’s statement that there is no discrimination as manual and domestic migrant workers receive the same wages as nationals and are treated equally. The Committee asks the Government to provide information as follows:

• (i) statistical data, disaggregated by nationality and sex, on the economic sectors in which Indonesian and Filipino manual workers as well as nationals whose wages do not exceed MYR2,500 are employed and the number of nationals employed as domestic worker;
• (ii) the wage levels of Indonesian and Filipino workers as well as nationals in the different sectors of employment;
• (iii) the reasons for excluding domestic workers from the Minimum Wage Order 2012; please provide copies of any rules made by the Minister, pursuant to section 130O(j), for the engagement, repatriation and conditions of work of domestic workers;
• (iv) the specific measures taken to ensure that in practice Indonesian and Filipino manual workers and domestic workers, are not treated less favourably than nationals with respect to the matters enumerated in Article 6(1)(a) to (d) of the Convention.

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

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Article 6(1)(b) of the Convention. Equality of treatment with respect to social security. Employment injury benefits. The Committee recalls its previous comments regarding differences in treatment between nationals and temporary foreign workers with respect to payment of social security benefits in the case of industrial accidents. The differences relate to the Workmen’s Compensation Scheme (WCS), which guarantees to foreign workers employed in the country for up to five years only a lump-sum payment of a significantly lower amount than the periodical payments to victims of industrial accidents provided under the Employees’ Social Security Scheme (ESS), while Malaysian nationals and foreign workers permanently residing in Malaysia (Sabah) continue to be covered by the ESS. The Government indicated in November 2012, that it was conducting an actuarial study considering the following three options: (i) extension of ESS coverage to foreign workers; (ii) creation of a special scheme for foreign workers under the ESS; or (iii) raising the level of benefit provided under the WCS so as to be equivalent to that of the ESS benefit. Upon the completion of the study, continuous engagement with the stakeholders would be carried out before the most suitable option was determined. Further, the Committee understands that the Social Security Organization of Malaysia (SOCSO) is considering the preparation of a technical study on the potential creation of a separate fund and scheme for the coverage of foreign workers, and has requested ILO technical assistance in this regard. With respect to industrial accidents, the Committee hopes that the actuarial study will be finalized shortly, and refers the Government to the comments made under the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19), with respect to Peninsular Malaysia. The Committee notes, however, with regret that the Government has not submitted its report on the application of Convention No. 19, due in 2013, and therefore the Committee has no further information on the progress made with respect to the actuarial study.

Other social security benefits. With respect to other social security benefits, the Committee notes the information provided by the Government regarding the content of the Memoranda of Understanding concluded with countries of origin, which, however, does not specify how it is ensured that no less favourable treatment is applied to migrant workers than to nationals in respect of social security benefits, including medical care, old-age, invalidity and survivor’s pensions, as well as sickness and maternity benefits. Taking into account the large number of foreign workers concerned, the Committee requests the Government to provide information on the steps taken, including the conclusion of bilateral or multilateral agreements, to ensure that migrant workers do not receive treatment which is less favourable than that applied to nationals or foreign workers permanently residing in the country with respect to all social security benefits. The Committee also requests the Government to provide information on any developments regarding the actuarial study with respect to industrial accident benefits and the technical study considered by SOCSO, and the results achieved.

Minimum wages and the foreign worker levy. The Committee notes the National Wages Consultative Council (NWCC) Act 2011 (Act 732) and the Minimum Wages Order 2012 providing for a regional monthly minimum wage of 800 Malaysian ringgit (MYR) for Sabah, to be implemented as of 1 January 2013. It also notes the Guidelines on the Implementation of the Minimum Wages Order 2012 (the “Guidelines”) published by the NWCC (6 September 2012), as well as its press statement of 13 March 2013 on the implementation of minimum wages. The Committee notes that the Minimum Wages Order 2012 applies to “employees” as defined in section 2(1) of the Schedule of the Labour Ordinance (Sabah Cap. 67), thus covering both nationals and foreign workers, but excluding domestic workers from its application. It also notes from the Guidelines that accommodation and food supply are excluded from the minimum wage. The Committee further notes that pursuant to the Minimum Wages (Amendment) Order 2013 certain enterprises were allowed to defer payment of minimum wages until 31 December 2013, but that as of 1 January 2014, all employers employing foreign workers will have to pay the abovementioned minimum wage. The Committee also notes that the document on the Minimum Wage Policy (March 2013) issued by the Ministry of Human Resources states that employers who have implemented minimum wages are allowed to deduct the actual amount of the foreign worker levy on a prorated monthly basis, as well as the cost of accommodation not exceeding MYR50 per month per person. In special circumstances, based on individual merits, the Labour Department may consider applications to deduct the cost of accommodation exceeding MYR50 a month. The Committee notes from the Government’s report the rates of the foreign workers’ levy according to sector of employment enforced from 11 September 2011 (agriculture: MYR410; manufacturing: MYR1,100; construction: MYR1,100; social service/personal: MYR1,490 (except welfare home and island resort) and domestic work: MYR410). The Committee had previously noted the Government’s indication that the levy could not be deducted from the wages of the worker. The Committee had in the past also warned against the possible negative impact of such a levy system on the wages and general working conditions and rights of migrant workers, especially when levy rates are high and being deducted from employees’ wages. The Committee therefore considers that allowing, in practice, the amount of the levy to be deducted from the minimum wages of foreign workers may result in less favourable treatment of these workers with nationals, contrary to Article 6(1)(a) of the Convention. Given the ambiguity in the Government’s previous statement and the Minimum Wage Policy (2013) of the Ministry of Human Resources regarding permissible deductions to minimum wages of foreign workers, the Committee requests the Government to clarify whether employers are still allowed to deduct levy and accommodation costs from the minimum wages of foreign workers, and provide the text of the legal provisions or the policy in this regard. The Committee asks the Government to take the necessary steps to ensure that employers do not deduct, in practice, the levy amount from the minimum wages paid to foreign workers and to provide information in this regard. Recalling that the Government had previously indicated that it was willing to examine the impact of the levy system on the working conditions and equal treatment of migrant workers, including wages, the Committee requests the Government to undertake such an assessment and provide information on its results and any follow-up given to it.

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.]

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Article 1 of the Convention. Information on migration flows. The Committee notes from the Government’s report that there are presently 110,528 foreign workers employed in Sabah, among whom there are 70,160 male and 32,803 female Indonesian workers, and 5,548 male and 2,017 female Filipino workers. Most of the foreign workers are employed in the agricultural sector (68.60 per cent), followed by manufacturing (10.27 per cent) and domestic service (8.25 per cent). The Committee asks the Government to continue to provide statistical information, disaggregated by sex and nationality, on the number of migrant workers employed in Sabah, and an indication of the sectors in which they are employed.

Articles 2, 4 and 7. Information and assistance to migrant workers. The Committee notes that, pursuant to sections 18 and 130D(2)(i) of the Labour Ordinance (Sabah Cap. 67), which requires employers to have a written contract with their employees if the duration is longer than a month, the Minister of Human Resources issued the Labour (Contents of Contract) (Sabah) Rules in 2008. According to the Government the enforcement of the provisions of a written contract will improve migrant workers’ awareness of their employment rights, and action will be taken against those found violating the Labour (Contents of Contract) (Sabah) Rules. Noting that certain migrant workers, such as manual and domestic workers, may be excluded from the provisions of the Labour Ordinance, the Committee asks the Government to indicate which migrant workers are covered by the Labour (Contents of Contract) (Sabah) Rules, and to provide information on the measures taken to inform migrant workers about the Rules, as well as their rights and obligations set out in the national legislation. Please provide further details on the measures taken to inform and assist migrant workers during their stay in Sabah.

Article 3. Misleading propaganda. Regarding its previous comments stressing the importance of measures to combat misleading propaganda with a view to preventing migration in irregular conditions, including trafficking, the Committee notes the Government’s reply that the issue of misleading propaganda does not arise in Sabah, as only recruitment of migrant workers from Indonesia and the Philippines is permitted and is governed by a system of permits and licences issued by the Labour Department which cooperates with the Indonesian Consulate. Bearing in mind that, even where misleading propaganda is not currently a problem, preventive measures are still appropriate to ensure that it does not become a problem in the future, the Committee asks the Government to consider taking specific steps to ensure that migrant workers coming to Sabah are not subjected to erroneous information, either by employers or intermediaries, regarding their living and working conditions, and to report on the progress made.

Article 6. Equality of treatment. The Committee notes that the Labour Department has not received complaints regarding discrimination in respect of terms and conditions of employment from migrant workers pursuant to section 118B of the Labour Ordinance. The Government indicates that the Indonesian Consulate and the Labour Attaché from the Embassy of the Republic of the Philippines monitor employment contracts and the employment of their nationals, and that any cases of discrimination would be brought to the attention of the relevant authority. The Committee recalls that under the Convention the Government has the obligation to ensure that the legislation covering the matters in Article 6(1)(a) is effectively applied, particularly by means of labour inspection services or other supervisory authorities. It points out that no legislation can be considered effective if the victims do not make use of the protection offered by the law for fear of possible reprisals by the accused. The Committee therefore asks the Government to provide information on the measures taken to ensure that the legislation protecting migrant workers from discrimination with respect to their conditions of work is effectively applied and enforced, and that effective mechanisms exist for migrant workers to submit complaints without fear of reprisals. Please continue to provide information on the number and nature of complaints submitted by non-resident employees pursuant to section 118B of the Labour Ordinance (Sabah Cap. 67) concerning discrimination with respect to the matters enumerated in Article 6(1)(a)(i) of the Convention, as well as the sanctions imposed and remedies provided.

Manual workers and domestic workers. The Committee recalls that paragraphs 1 and 2(a) and (f) of the Schedule to the Labour Ordinance excludes from its application persons, irrespective of their occupation, who have entered into a contract of service with an employer under which such person’s wages do not exceed 2,500 Malaysian ringgit (RM) a month, persons who are engaged in manual labour and domestic workers. The Committee notes the Government’s explanation of the term “manual worker”. The Committee asks the Government to indicate the numbers of foreign workers, by sex and nationality, falling within the categories of manual workers, domestic workers and workers who have entered into a contract of service with an employer and whose wages do not exceed RM2,500 a month. Please indicate the specific measures taken to ensure that these workers, in particular manual workers and domestic workers, are not treated less favourably than nationals with respect to the matters enumerated in Article 6(1)(a) to (d) of the Convention. Please provide copies of any rules made by the Minister, pursuant to section 130O(j), for the engagement, repatriation and conditions of work of domestic workers.

Foreign worker levy. The Committee notes the Government’s explanations regarding the rationale behind the imposition of a levy on employers who employ migrant workers. The Government states that the levy cannot be deducted from the wages of the workers. The Committee notes the rates of levy payments for foreign workers in the plantation sector, agricultural and fishing sector, manufacturing sector, construction sector, services sector and for “domestic maids”. It notes that the annual levy is the lowest for domestic workers, plantation workers and agricultural workers (ranging from RM360 to RM540), while being the highest for service workers (RM1,440). Noting the willingness of the Government to examine the impact of the levy system on the working conditions and equal treatment of migrant workers, the Committee asks the Government to provide information on any steps taken in this regard, and to include in its examination the impact of the levy on the use of misleading propaganda contrary to Article 3 of the Convention. Please provide a copy of the regulation imposing the levy on foreign workers.

Enforcement. The Committee notes from the Government’s report that, in 2009, a total of 4,301 workplaces were inspected and that 589 cases of non‑compliance were detected. Notices were issued to correct non-compliance within 14 days, and four employers were prosecuted. The Labour Department also organizes briefings for employers to raise awareness of the provisions of the Labour Ordinance. Noting that migrant workers are mainly employed in the plantation, agriculture and fishing sectors, as well as the domestic service sector, the Committee requests the Government to provide information on the number and types of cases of non-compliance with the relevant laws and regulations detected in these sectors, as well as on any cases handed down by the courts and any violations detected by the bodies entrusted with monitoring respect for the Convention, the remedies provided and sanctions imposed. Please also indicate any measures taken or envisaged by the Labour Department to raise awareness among migrant workers about the principles and rights enshrined in the Convention, and in the relevant laws and regulations.

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The Committee notes the Government’s very brief report merely confirming that the Workmen’s Compensation Act 1952 is not applicable to domestic workers, and that the amendment to include domestic workers under the Workmen’s Compensation Scheme will be applicable throughout Malaysia, including Sabah. The Committee further notes that the Government’s report contains no reply to the other points raised in its observation. It is therefore bound to repeat its previous observation, which read as follows:

Article 6(1)(b) of the Convention. Equality of treatment with respect to social security. For over ten years, the Committee, as well as the Conference Committee on the Application of Standards, have been pursuing a dialogue with the Government regarding differences in treatment between nationals and foreign workers with respect to payment of social security benefits. The Committee had noted that, as of 1 April 1993, foreign workers in the private sector were no longer covered by the Employees’ Social Security Act, 1969 (SOCSO), which provided for periodical payments to victims of industrial accidents and their dependants. Instead they were transferred to the Workmen’s Compensation Scheme (WCS) which only guarantees the payment of a lump sum. The Committee had considered that this change was not in conformity with Article 6(1)(b) of the Convention. A review of the two schemes had also shown that the level of benefits in the case of industrial accident provided under the Employees’ Social Security Scheme (ESS) was substantially higher than that provided under the WCS.

The Committee recalls that foreign workers permanently residing in Malaysia (Sabah) continue to be covered by the ESS, while foreign workers working in the country for a period of up to five years are covered only by the WCS. The Committee notes the detailed comparison provided by the Government of the benefits awarded according to each system in identical circumstances. The comparison shows, however, that the level of benefits in the case of industrial accident provided under the WCS is substantially lower than that provided under the SOCSO. Moreover, the Committee notes that some other differences exist between temporary foreign workers and foreign workers permanently residing in the country and nationals in respect of, for example, the invalidity pension scheme and survivors’ pension rehabilitation, as well as accidents outside work. The Committee further notes that the Government maintains its position that the system is reliable and suitable to the needs of the workforce of the country. The Committee notes from the UNDP–Sabah development statistics that in 2005, 24.8 per cent of the population were non-citizens. The Committee understands that the percentage of foreign workers has been increasing ever since, and that many of them are working in manufacturing, plantation work, domestic work, construction, services and agriculture.

The Committee recalls that Article 6(1)(b) of the Convention applies to all foreign workers, both those with permanent and temporary residence status, who shall not be treated less favourably than nationals in respect of social security (that is to say, legal provision in respect of employment injury, maternity, sickness, invalidity, old age, death, unemployment and family responsibilities, and any other contingency which, according to national laws or regulations, is covered by a social security scheme). The Committee also recalls Article 10 of the Convention, providing that in cases where the number of migrants going from the territory of one Member to that of another is sufficiently large, the competent authorities shall, where necessary or desirable, enter into agreements for the purpose of regulating matters of common concern arising in connection with the application of the provisions of the Convention. With respect to industrial accidents, the Committee refers the Government to the comments made under the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19), with respect to Peninsular Malaysia. With respect to other social security benefits, and taking into account the large number of foreign workers concerned, the Committee hopes that the Government will consider making every effort to take special steps, including the conclusion of bilateral or multilateral agreements, to ensure that migrant workers do not receive treatment which is less favourable than that applied to nationals or foreign workers permanently residing in the country with respect to other social security benefits. …

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

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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Articles 2, 4 and 7 of the Convention. Information and assistance to migrant workers. The Committee notes from the Government’s report that labour officers and private recruitment agencies provide information and services to migrants relating to the migration process, accommodation and subsistence expenses as well as certain facilities provided at their workplace, and practical arrangements. Recalling the importance of providing adequate information and assistance to migrant workers with respect to their rights and obligations in the host country, the Committee asks the Government to provide additional details on the measures taken to inform and assist migrant workers during their stay in Sabah, and in particular whether any measures are being taken to make migrant workers aware of their rights.

Article 3. Misleading propaganda, measures to address clandestine and illegal immigration, private recruitment agencies. The Committee notes the Government’s statement that no misleading propaganda on emigration or immigration exists in Sabah and therefore no specific measures have been taken. However, any person who promotes clandestine or illegal immigration shall be subject to the appropriate penalties under the immigration laws. The Government further indicates that authorized private employment agencies should be duly licensed under the Private Employment Agencies Act, 1993, and are subjected to regular monitoring and inspection activities. The Committee notes in this regard that, more generally, the United Nations Committee on the Elimination of Discrimination Against Women, in its concluding observations on the report by Malaysia, has expressed concern about the lack of legislative and other measures to prevent and eliminate trafficking in women and to protect victims. Moreover, women and girls who have been trafficked may be punished for violation of immigration laws (CEDAW/C/MYS/CO/2, 31 May 2006). The Committee draws the attention of the Government to the fact that measures to address misleading propaganda are an important step in preventing clandestine and irregular migration, including trafficking of human beings, as well as abuse and discrimination of migrant workers. Workers must not only be provided with adequate information on the migration process, but also be protected from misleading information stemming from intermediaries. Unscrupulous agents who profit from migration flows may have an interest in disseminating erroneous information on living and working conditions, including wages. The Committee also refers the Government to the Guidelines under Part VI, Principle 11, of the ILO Multilateral Framework on Labour Migration to assist governments to address clandestine and irregular migration. The Committee asks the Government to provide information on the measures taken to combat misleading propaganda, including by private recruitment agencies, addressed to migrant workers, as well as to indicate the specific legal provisions under the immigration laws punishing persons who promote clandestine and irregular migration, including trafficking.

Article 6. Equality of treatment. Section 118B of the Labour Ordinance provides that the Director of Labour may inquire into any complaint from a resident employee that he or she is being discriminated against in relation to a non-resident employee, or from a non-resident employee that he or she is being discriminated against in relation to a resident employee, by his or her employer in respect of the terms and conditions of employment; the Director may issue to the employer such directives as may be necessary or expedient to resolve the matter. The Committee recalls that, under Article 6(1)(a)(i) of the Convention, migrant workers shall not be treated less favourably than nationals with respect to remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age of employment, apprenticeship and training, women’s work and work of young persons. Considering the high number of foreign workers employed in Sabah, the Committee asks the Government to provide information on the number and nature of complaints submitted by non-resident employees pursuant to section 118B of the Labour Ordinance (Sabah Cap. 67) concerning discrimination with respect to matters enumerated in Article 6(1)(a)(i) of the Convention, as well as the sanctions imposed and remedies provided.

Manual workers and domestic workers. The Committee notes that, pursuant to section 2B of the Labour Ordinance (Sabah Cap. 67), the Minister may, by order, exempt or exclude, subject to such conditions as he or she may deem fit to impose, any person or class of persons from all or any of the provisions of this Ordinance. Pursuant to sections 100 and 130O(j), the Minister may make rules applying all or any of the provisions of this Ordinance to all domestic workers or to any group, class or number of domestic workers and make rules to provide generally for the engagement, repatriation and working conditions of domestic workers. The Committee further notes that Schedule 1, 2(a) and 2(f) of the Labour Ordinance excludes from its application persons, irrespective of their occupation, who have entered into a contract of service with an employer under which such person’s wages do not exceed 2,500RM a month, persons who are engaged in manual labour and domestic workers. The Committee notes, more generally, that CEDAW, in its concluding observations on the report by Malaysia, has also expressed concern about the lack of legislation and policies on the rights of migrant workers, particularly migrant domestic workers who are mostly women, including employment rights and rights to seek redress in cases of abuse (CEDAW/C/MYS/CO/2, 31 May 2006). The Committee asks the Government to indicate the numbers of foreign workers and nationals, by sex and nationality, falling within the categories of workers exempted from the Labour Ordinance. Please also clarify the meaning of “manual worker”, including the sectors in which they are employed, as well as indicate the measures taken to ensure that manual workers and domestic workers are not treated less favourably than nationals with respect to the matters enumerated in Article 6(1)(a)–(d) of the Convention. Please also provide copies of any rules made by the Minister, pursuant to section 130O(j) for the engagement, repatriation and conditions of work of domestic workers.

Foreign worker levy. The Committee understands that an annual levy is being imposed on employers of foreign workers, the rates of which differ according to the category of worker. The Committee has in the past warned against the possible negative impact of such a levy system on the wages and general working conditions and rights of migrant workers, especially when levy rates are high and being deducted from employees’ wages, as well as on the resort by employers to illegal recruitment or misleading propaganda on the type of jobs or conditions offered to the migrant worker. The Committee asks the Government to explain the rationale behind the levy policy and to provide a copy of the regulation imposing the levy, with an indication of the rates per category of foreign worker. The Committee asks the Government whether it has examined or has any intention of examining the impact of the levy imposition on the working conditions and equal treatment of foreign workers or on the use of misleading propaganda contrary to Articles 3 and 6 of the Convention, and, if not, encourages the Government to do so.

Enforcement. The Committee notes that the State Director of Labour and the inspection team of the Labour Department are responsible for supervision and enforcement of the Labour Ordinance (Sabah Cap. 67). The Committee notes the Government’s statement that no decisions involving questions of principle relating to the application of the Convention have been handed down by the court and that no contraventions have been reported which affect the practical application of the Convention. Given that migrant workers may not always be in a position to take the initiative to secure respect for the relevant legislation due to lack of awareness or fear of reprisals, the Committee recalls the importance of establishing effective mechanisms to ensure the application of the principles of the Convention, especially the principle of equal treatment. The Committee requests the Government to provide information on any practical measures taken to ensure the effective application of the Labour Ordinance (Sabah Cap. 67) and other relevant laws and regulation, as well as on any decisions handed down by the courts and any violations detected by the bodies entrusted with monitoring respect for the Convention.

Statistics. Please provide detailed information on the number of foreign workers immigrating to Sabah and the number of nationals emigrating for employment aboard, disaggregated by sex and nationality. Please also provide an indication of the main sectors in which they are employed.

[The Committee is asked to reply in detail to the present comments in 2010.]

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Article 6(1)(b) of the Convention. Equality of treatment with respect to social security. For over ten years, the Committee, as well as the Conference Committee on the Application of Standards, have been pursuing a dialogue with the Government regarding differences in treatment between nationals and foreign workers with respect to payment of social security benefits. The Committee had noted that, as of 1 April 1993, foreign workers in the private sector were no longer covered by the Employees’ Social Security Act, 1969 (SOCSO), which provided for periodical payments to victims of industrial accidents and their dependants. Instead they were transferred to the Workmen’s Compensation Scheme (WCS) which only guarantees the payment of a lump sum. The Committee had considered that this change was not in conformity with Article 6(1)(b) of the Convention. A review of the two schemes had also shown that the level of benefits in the case of industrial accident provided under the Employees’ Social Security Scheme (ESS) was substantially higher than that provided under the WCS.

The Committee recalls that foreign workers permanently residing in Malaysia (Sabah) continue to be covered by the ESS, while foreign workers working in the country for a period of up to five years are covered only by the WCS. The Committee notes the detailed comparison provided by the Government of the benefits awarded according to each system in identical circumstances. The comparison shows, however, that the level of benefits in the case of industrial accident provided under the WCS is substantially lower than that provided under the SOCSO. Moreover, the Committee notes that some other differences exist between temporary foreign workers and foreign workers permanently residing in the country and nationals in respect of, for example, the invalidity pension scheme and survivors’ pension rehabilitation, as well as accidents outside work. The Committee further notes that the Government maintains its position that the system is reliable and suitable to the needs of the workforce of the country. The Committee notes from the UNDP–Sabah development statistics that in 2005, 24.8 per cent of the population were non-citizens. The Committee understands that the percentage of foreign workers has been increasing ever since, and that many of them are working in manufacturing, plantation work, domestic work, construction, services and agriculture.

The Committee recalls that Article 6(1)(b) of the Convention applies to all foreign workers, both those with permanent and temporary residence status, who shall not be treated less favourably than nationals in respect of social security (that is to say, legal provision in respect of employment injury, maternity, sickness, invalidity, old age, death, unemployment and family responsibilities, and any other contingency which, according to national laws or regulations, is covered by a social security scheme). The Committee also recalls Article 10 of the Convention, providing that in cases where the number of migrants going from the territory of one Member to that of another is sufficiently large, the competent authorities shall, where necessary or desirable, enter into agreements for the purpose of regulating matters of common concern arising in connection with the application of the provisions of the Convention. With respect to industrial accidents, the Committee refers the Government to the comments made under the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19), with respect to Peninsular Malaysia and Sarawak. With respect to other social security benefits, and taking into account the large number of foreign workers concerned, the Committee hopes that the Government will consider making every effort to take special steps, including the conclusion of bilateral or multilateral agreements, to ensure that migrant workers do not receive treatment which is less favourable than that applied to nationals or foreign workers permanently residing in the country with respect to other social security benefits. Noting from the Government’s report for Sarawak and Peninsular Malaysia on Convention No. 19, that the Government is considering extending the Workmen’s Compensation Scheme to domestic workers, please indicate whether domestic workers are covered under the Workmen’s Compensation Scheme of Sabah.

The Committee hopes that the Government will make every effort to take the necessary action in the very 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 2010.]

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The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Article 6, paragraph 1(b), of the Convention. For many years now, the Committee has been pursuing a dialogue with the Government regarding differences in treatment between nationals and foreign workers with respect to payment of social security benefits. The Committee had considered that the transfer of foreign workers working in the private sector from the Employees’ Social Security Scheme (ESS) to the Workmen’s Compensation Scheme was not in conformity with Article 6, paragraph 1(b), of the Convention as, under the new scheme, foreign workers were provided with a lump sum and no longer with a monthly payment. A review of the two schemes had also shown that the level of benefits in case of industrial accident provided under the ESS was substantially higher than that provided under the Workmen’s Compensation Scheme. The Committee regrets to note that the Government merely continues to state its main arguments for introducing the lump-sum system of payment, without giving elements of a detailed comparison of the benefits which would be awarded according to each system in identical circumstances.

The Committee trusts that the Government will make every effort to demonstrate in its next report that migrant workers do not receive treatment which is less favourable than that applied to nationals. It hopes in particular that the Government’s report will contain full information on the action taken to ensure that the lump sum corresponds to the actuarial equivalent of the periodical payments provided to nationals under the ESS, as well as information comparing the benefits which would be awarded according to each system in identical circumstances.

The Committee also refers the Government to the comments made under Convention No. 19 with respect to Peninsular Malaysia and Sarawak.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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Article 6, paragraph 1(b) of the Convention. For many years now, the Committee has been pursuing a dialogue with the Government regarding differences in treatment between nationals and foreign workers with respect to payment of social security benefits. The Committee had considered that the transfer of foreign workers working in the private sector from the Employees’ Social Security Scheme (ESS) to the Workmen’s Compensation Scheme was not in conformity with Article 6, paragraph 1(b), of the Convention as, under the new scheme, foreign workers were provided with a lump sum and no longer with a monthly payment. A review of the two schemes had also shown that the level of benefits in case of industrial accident provided under the ESS was substantially higher than that provided under the Workmen’s Compensation Scheme.

The Committee regrets to note that the Government merely continues to state its main arguments for introducing the lump-sum system of payment, without giving elements of a detailed comparison of the benefits which would be awarded according to each system in identical circumstances.

The Committee trusts that the Government will make every effort to demonstrate in its next report that migrant workers do not receive treatment which is less favourable than that applied to nationals. It hopes in particular that the Government’s report will contain full information on the action taken to ensure that the lump sum corresponds to the actuarial equivalent of the periodical payments provided to nationals under the ESS, as well as information comparing the benefits which would be awarded according to each system in identical circumstances.

The Committee also refers the Government to the comments made under Convention No. 19 with respect to Peninsular Malaysia and Sarawak.

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The Committee notes the information supplied by the Government in its report.

Article 6, paragraph 1(b). For a number of years the Committee has drawn the attention of the Government to the fact that the transfer of foreign workers working in the private sector from the Employees’ Social Security Scheme (ESS) to the Workmen’s Compensation Scheme was not in conformity with Article 6, paragraph 1(b), of the Convention. One of the principal differences was that, under the new scheme, foreign workers were provided with a lump sum and no longer with a monthly payment. A review of the two schemes had in fact shown that the level of benefits in case of industrial accident, provided under the ESS, was substantially higher than that provided under the Workmen’s Compensation Scheme. Even though the Workmen’s Compensation Scheme was amended in 1996 this merely resulted in an increase in the ceiling on lump-sum benefits and did not transform the benefit into a periodic payment equivalent to that provided to nationals under the ESS. In 1998 the Government had indicated that it was contemplating a review of the situation regarding the coverage of foreign workers under the ESS and that it was proposing amendments to the Social Security Act of 1969 in this regard.

In its last report, the Government reiterates once again its main arguments for introducing the lump-sum system of payment, without giving elements of scientific comparison of the benefits which would be awarded according to each system in identical circumstances. In this regard, the Committee again draws the Government’s attention to the fact that the lump sum referred to should correspond to the actuarial equivalent of the periodical payments involved.

The Committee therefore hopes that the Government will make every effort to provide detailed information and take the necessary action in order to ascertain that migrant workers do not receive treatment which is less favourable than that applied to nationals.

Please also refer to the comments made under Convention No. 19.

[The Government is asked to reply in detail to the present comments in 2005.]

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The Committee notes the information supplied by the Government in its report.

Article 6, paragraph 1(b). In its previous comments, the Committee drew to the attention of the Government to the fact that the transfer of foreign workers working in the private sector from the Employees’ Social Security Scheme (ESS) to the Workmen’s Compensation Scheme was not in conformity with Article 6, paragraph 1(b), of the Convention. One of the principal differences was that, under the new scheme, foreign workers were provided with a lump sum and no longer with a monthly payment. A review of the two schemes had in fact shown that the level of benefits in case of industrial accident, provided under the ESS, was substantially higher than that provided under the Workmen’s Compensation Scheme. Even though the Workmen’s Compensation Scheme was amended in 1996 this merely resulted in an increase in the ceiling on lump-sum benefits and did not transform the benefit into a periodic payment equivalent to that provided to nationals under the ESS. In 1998 the Government had indicated that it was contemplating a review of the situation regarding the coverage of foreign workers under the ESS and that it was proposing amendments to the Social Security Act of 1969 in this regard.

In its last report, the Government reiterates its main arguments for introducing the lump-sum system of payment. However, the Government does not give elements of scientific comparison of the benefits which would be awarded according to each system in identical circumstances. In this perspective, the Committee draws the Government’s attention to the fact that the lump sum referred to should correspond to the actuarial equivalent of the periodical payments involved.

The Committee therefore hopes that the Government will make every effort to provide detailed information and take the necessary action in order to ascertain that migrant workers do not receive treatment which is less favourable than that applied to nationals.

[The Government is asked to reply in detail to the present comments in 2003.]

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The Committee notes that the Government’s report contains no reply to its previous comments. It must therefore repeat its previous observation which reads as follows:

Article 6, paragraph 1(b).  In its previous comments, the Committee drew to the attention of the Government the fact that the transfer of foreign workers working in the private sector from the Employees’ Social Security Scheme (ESS) to the Workmen’s Compensation Scheme was not in conformity with this provision of the Convention. A review of the two schemes had in fact shown that the level of benefits in case of industrial accident, provided under the ESS, is substantially higher than that provided under the Workmen’s Compensation Scheme. In this respect, the Committee notes with interest that the Government has reported that it is now contemplating a review of the present situation regarding the coverage of foreign workers under the ESS and that it is proposing amendments to the Social Security Act of 1969 in this regard. The Committee hopes that in its next report the Government will be able to indicate the progress made in amending the Social Security Act in order to ensure that foreign workers will receive an equal benefit, including workmen’s compensation benefits, to that paid to nationals, in conformity with this provision of the Convention. Please supply copies of the proposals made or the amended law, if adopted, in its next report.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.