Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the Government’s report dated 14 September 2011, as well as the communication of the International Trade Union Confederation (ITUC) dated 31 August 2011.

Article 2(1) of the Convention. Minimum age for admission to employment or work. The Committee previously noted that, at the time of ratifying the Convention, the Government had declared 15 years as the minimum age for admission to employment. However, the Committee noted that Children and Young Persons (Employment) Act of 1966 (CYP Act) provided that no “child” (defined as a person under 14 years of age, pursuant to section 1(A)) shall be engaged in any employment. In this regard, the Committee noted that, according to a Government representative of Malaysia at the Conference Committee on the Application of Standards at the 98th Session of the International Labour Conference in June 2009, a tripartite technical committee was established, to, among other things, review the CYP Act and give consideration to raising the minimum age for admission to employment or work from 14 to 15 years. The Committee urged the Government to take the necessary measures to ensure that the tripartite technical committee raised the minimum age for admission to employment or work to 15 years, and that the relevant amendments were adopted as soon as possible.

The Committee notes the statement in the communication of the ITUC that no one under the minimum age specified by the Government upon ratification (of 15 years) should be admitted to employment or work in any occupation.

The Committee notes that the Children and Young Persons (Employment) (Amendment) Act of 2010 (CYP Amendment Act) was adopted and has been in force since 1 March 2011. The Committee notes with satisfaction that the CYP Amendment Act amends the CYP Act to define a “child” as a person under 15 years of age, thereby raising the minimum age for admission to employment or work (pursuant to section 2(1) of the CYP Act) from 14 years to 15 years of age.

Article 3(1) and (2). Minimum age for admission to and determination of hazardous work. In its previous comments, the Committee noted that the relevant legislation did not contain any provisions prohibiting young people under 18 years of age from being employed in types of work likely to jeopardize their health, safety or morals. However, the Committee noted the Government’s indication that it would make the necessary recommendations to the tripartite technical committee so as to ensure that no one under the age of 18 years is authorized to perform hazardous work and that those hazardous types of work are determined in national legislation. Noting the conclusions of the Conference Committee on the Application of Standards, the Committee strongly urged the Government to take the necessary measures to ensure that the tripartite technical committee seriously considered prohibiting hazardous work or employment to persons under 18 years of age, in accordance with Article 3(1) of the Convention, and to ensure that the determination of these types of hazardous work.

The Committee notes the statement in the ITUC’s communication that several provisions of the CYP Act are inconsistent with Convention No. 138, including that it does not specify a minimum age for admission to hazardous work.

The Committee notes with satisfaction that, pursuant to the CYP Amendment Act, the term “young person” is defined as a person between 15 and 18 years of age (pursuant to section 1A), and that pursuant to section 2(1) of the CYP Act, no child or young person (i.e. all persons under 18 years) shall be required or permitted to engage in any hazardous employment. The Committee also notes that section 2(5) of the CYP Act has been amended to state that no child or young person may be engaged in work underground, or in any employment contrary to the provisions of the Factories and Machinery Act, the Occupational Safety and Health Act of 1994 or the Electricity Supply Act of 1990. Moreover, the Committee notes that the CYP Act has been amended to include section 2(6), which states that for the purpose of section 2, “hazardous work” means any work that has been classified as hazardous based on the risk assessment conducted by a competent authority on safety and health as determined by the Minister. The Committee requests the Government to provide information on the measures taken, pursuant to section 2(6) of the CYP Act (as amended), to determine the types of work which constitute hazardous work prohibited to persons under the age of 18, following consultations with the organizations of employers and workers concerned.

Article 7(1). Minimum age for admission to light work. The Committee previously noted that section 2(2)(a) of the CYP Act allows children to be employed in light work which is adequate to their capacity, in any undertaking carried on by their family, but observed that no minimum age for admission to light work had been specified. The Committee urged the Government to take the necessary measures to ensure that the CYP Act was reviewed and amended to provide a minimum age of 13 years for light work.

The Committee notes the Government’s statement that there is no minimum age of 13 years for light work specified in the CYP Act (as amended), but that the general protection of such persons is stipulated in the Child Act 2001. However, the Committee observes that the Child Act 2001 does not appear to contain provisions relating to the minimum age for admission to light work, and instead provides for the general protection of children under 18 years of age. In this regard, the Committee once again recalls that Article 7(1) of the Convention, provides for the possibility of admitting young persons to light work activities only from the age of 13 years. The Committee therefore requests the Government to take measures to establish a minimum age of 13 years of age for admission to light work, in conformity with Article 7(1) of the Convention. It requests the Government to provide information on the progress made in this regard in its next report.

Article 7(3). Determination of types of light work. The Committee previously shared the concern expressed by the Committee on the Rights of the Child (CRC), in its concluding observations of 25 June 2007, that the provisions of the CYP Act concerning light work permit, among other things, employment involving light work without detailing the acceptable conditions of performing such work (CRC/C/MYS/CO/1, paragraph 90). However, the Committee noted that the Government representative at the Conference Committee on the Application of Standards explained that, within the framework of the revision of the CYP Act, the tripartite technical committee would consider whether the competent authority could authorize the performance of light work, which would include a definition of light work and a limitation of working time. The Committee urged the Government to take the necessary measures to ensure that the CYP Act was reviewed and amended to determine the types of light work, including the number of hours during which, and the conditions in which, such employment or work may be undertaken.

The Committee notes with interest that pursuant to section 3 of the CYP Amendment Act, the term “light work” is defined in section 1A of the CYP Act as any work performed by a worker: (a) while sitting, with moderate movement of the arm, leg and trunk; or (b) while standing, with mostly moderate movement of the arm. The Committee also notes that pursuant to section 5 of the CYP Act, no person under 15 shall work between 8 p.m. and 7 a.m. Section 5(c) of the CYP Act (as amended) further states that if a child is attending school, the time in school and work combined shall not exceed seven hours. Moreover, section 5(b) of this Act states that no child may work for more than three consecutive hours without a period of rest of at least 30 minutes, and may not work on any day without having had 14 consecutive hours of rest.

Parts III and V of the report form. Application of the Convention in practice. The Committee previously noted that the CRC, in its concluding observations of 25 June 2007, expressed concern that the enforcement of Convention No. 138 remained weak (CRC/C/MYS/CO/1, paragraph 90). It also noted that the CRC expressed its regret at the lack of a national data collection system and at the insufficient data on working children. However, the Committee noted the indication of the Government representative at the Conference Committee on the Application of Standards that the Malaysia peninsula alone has 300 labour inspectors, with every labour inspector carrying out between 25 and 30 inspections per month. The Government representative also indicated that, out of 30,084 complaints received on various labour issues, none of these cases related to child labour. Nonetheless, the Committee noted that the Worker members at the Conference Committee on the Application of Standards indicated that issues remained, particularly with regard to children working on oil palm plantations, in the agricultural sector, and also with regard to children working in towns and cities.

The Committee notes the statement in the report of the ITUC, for the World Trade Organization General Council on the Trade Policies of Malaysia of 18 and 20 January 2010, entitled Internationally recognized core labour standards in Malaysia that child labour in Malaysia can be found primarily in rural areas in agriculture, where children often work along with their parents without receiving a salary. In urban areas, children work in restaurants, shops and small manufacturing units usually owned by family members. The ITUC further indicates in this report that the Government does not collect statistical data on child labour.

The Committee notes the Government’s statement that the Labour Department (under the Ministry of Human Resources) is taking the necessary measures to ensure that data on working children is collected. The Government indicates that it would like to consider engaging the technical assistance of the ILO to facilitate this data collection. Moreover, referring to its comments made under the Labour Inspection Convention, 1947 (No. 81), in 2010, the Committee notes the Government’s indication in its report submitted under Convention No. 81 that labour departments have been engaged in consultations with the police and the Immigration Department in respect of the employment of child workers, including on awareness raising among employers on child labour and the related legislation. The Committee encourages the Government to pursue its efforts to ensure that up-to-date statistical data on the economic activities of children and young persons is collected and made available, including the number of children working under the minimum age of 15, and to provide this information in its next report. In addition, the Committee requests the Government to continue its efforts to strengthen the capacity and expand the reach of the labour inspectorate to better monitor children carrying out economic activities in the agricultural sector. It requests the Government to provide information on measures taken in this regard.