Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

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

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.]