Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

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

1. Articles 1 and 2 of the Convention. Application in law and practice. In its previous comments, the Committee expressed concerns over the fact that neither the Constitution, the Employment Act nor the Wages Council Act prohibit discrimination in remuneration based on sex, and that the definition of wages in the Employment Act and Wages Council Act does not encompass benefits in kind and excludes certain elements of remuneration as defined in the Convention. Noting indications by the Government that the principle of equal remuneration for work of equal value was nevertheless ensured through labour inspections, the Committee asked it to provide information on the action taken by labour inspectors to identify and address violations of the Convention’s principle. The Committee also noted that so far the Industrial Court had examined no cases concerning equal remuneration.

2. The Committee notes the Government’s statement that the prohibition of gender discrimination introduced in article 8 of the Constitution in 2001 includes employment and payment of wages. The Government also states that, while the legislation does not specifically require equal remuneration for men and women, it is the practice to provide equal pay for work of equal value. Concerning the definition of wages in the legislation, the Government states that there are no plans to include benefits in kind in the definition of wages in the Employment Act. Further, the tripartite committee set up by the Ministry of Human Resources in 2001 to review labour legislation did not address the issues of discrimination in remuneration based on sex. According to the Government, the absence of court cases concerning equal remuneration is due to the fact that wages were mutually agreed between employers and workers. Finally, the Committee notes that the information provided by the Government on labour inspection relates to cases of non-payment of wages rather than discrimination in remuneration based on sex.

3. The Committee notes that article 8(2) of the Constitution, as amended in 2001, provides that, except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, gender or place of birth, in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment. While the Committee welcomes that the ground of gender has been added to the non-discrimination provision of the Constitution, it also notes that, as indicated by the Government to the Committee on the Elimination of Discrimination against Women in 2005 (CEDAW/C/MYS/Q/2/Add.1, pages 10-11), article 8 of the Constitution protects individuals only from discrimination by the State or its agencies and provides no protection from discrimination in private employment or collective agreements. Further, the Committee notes that article 8 does not fully set out the principle of equal remuneration for work of equal value. It therefore remains concerned about the lack of a provision for equal remuneration reflecting the Convention’s principle in the employment and minimum wage legislation.

4. In the Committee’s view, rather than indicating an absence of discrimination, the lack of any cases being brought concerning discrimination in remuneration based on sex or gender may in fact indicate a lack of appropriate legal basis or procedures for bringing such claims, or a lack of awareness of the principle of the Convention and the existing remedies available under the law. The fact that the wage is mutually agreed between the worker and the employer by no means excludes the occurrence of pay discrimination. Further, in the light of the information provided by the Government concerning labour inspection, it remains unclear how the Department of Labour ensures the application of the principle of equal remuneration in practice, particularly in the absence of any explicit legal provision.

5. Noting the concerns expressed by the Committee on the Elimination of Discrimination against Women about the persistence of patriarchal attitudes and deep-rooted stereotypes regarding the roles and responsibilities of women and men in society which it considered as root causes of the disadvantaged position of women in the labour market (CEDAW/C/MYS/CO/2, 31 May 2006, paragraph 15), the Committee emphasizes that such stereotypes and attitudes regularly result in gender-biased undervaluation of work performed by women and discrimination in the determination of wages, benefits and other forms of remuneration received by them.

6. On the basis of the above, the Committee considers that specific measures should be taken, in consultation with employers’ and workers’ organizations, to ensure the full application of the Convention in law and in practice. The Committee asks the Government to provide information on the following:

(a)   the specific measures taken or envisaged to review the legislation, with a view to giving legislative expression to the principle of equal remuneration for men and women for work of equal value, taking into account that equality must extend to all elements of remuneration as defined in Article 1(a) of the Convention;

(b)   any measures taken to promote awareness and understanding of the Convention’s principle among workers and employers (as well as judges and other competent public officials);

(c)   the action taken and the methods used by labour inspectors to identify and remedy violations of the principle of equal remuneration; and

(d)   cases concerning discrimination based on sex in respect of remuneration examined by the courts, including relevant jurisprudence concerning article 8 of the Constitution.

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