Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Labour Inspection Convention, 1947 (No. 81) - Malaysia (Ratification: 1963)

Articles 3(2) and 5(a) of the Convention. Duties entrusted to labour inspectors and cooperation with other government services. The Committee has previously noted that, since the 2010 amendments to the Anti-Trafficking People and Smuggling of Migrants Act of 2007, labour officers have assumed enforcement functions in this area. It also noted the indications in the annual reports of the Labour Departments for Sabah, Sarawak and Peninsular Malaysia that, following these amendments, labour officers had assumed enforcement functions in this area.

The Committee notes the Government’s statement in its report that the Department of Labour cooperates and collaborates with other governmental agencies, including the police and the Department of Immigration, and that inspectors have been sent to participate in training organized by these agencies. The Committee also notes the information in the report of the Ministry of Human Resources of 2012 indicating that the Ministry handled a total of 39 cases under the Anti-Trafficking People and Smuggling of Migrants Act in 2012. Eight of these cases involved the non-payment of wages for a period of more than three months, and as a result of the investigations, the due wages were subsequently paid. However, the report also states that, of the other cases investigated, 30 persons were handed over to the Immigration Department to be sent back to their country of origin. In addition, the Committee notes the indication in the report entitled Labour and Human Resources Statistics of 2012 that the number of complaints received concerning “illegal employment and improper treatment of migrant employees” declined significantly between 2009 and 2012. It observes, in this regard, that this report does not distinguish between complaints relating to the treatment and conditions of work of migrant workers and complaints received concerning illegal employment.

With reference to paragraphs 76–78 of its 2006 General Survey on labour inspection, the Committee wishes to emphasize that the primary duty of labour inspectors is to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers, and not to enforce immigration law. In accordance with Article 3(2) of the Convention, additional duties should be assigned to labour inspectors only in so far as they do not interfere with their primary duties and do not prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. In this connection, the Committee recalls that entrusting labour inspectors with the function of enforcing legislation on immigration may not be conducive to the relationship of trust needed for enlisting the cooperation of employers and workers with labour inspectors. The Committee accordingly requests the Government to take the necessary measures to ensure that the enforcement of the Anti-Trafficking People and Smuggling of Migrants Act by labour officers does not prejudice the effective discharge of their primary duties and does not impair the relationship of trust with employers and workers. The Committee also requests that the Government continue to provide information on action undertaken by the labour inspectorate in the enforcement of employers’ obligations towards migrant workers, including those in an irregular situation, such as the payment of wages, social security and other benefits. Lastly, the Committee requests that the Government provide, in its next report, statistical information specifically on complaints concerning the improper treatment of migrant workers, disaggregated from complaints that relate to illegal employment.

Articles 20 and 21. Obligation to publish and communicate an annual report on the work of the labour inspectorate. The Committee notes that an annual report on the work of the labour inspection services has not been received. It also notes that some elements relating to the subjects covered in Article 21(a) to (g) of the Convention are contained in the reports available on the website of the Ministry of Human Resources (entitled Labour and Human Resources Statistics of 2012; the Department of Occupational Safety and Health Annual Report of 2012 and the Report of the Ministry of Human Resources 2012), such as information on the number of workplaces registered, the number of workplaces inspected, the number of prosecutions undertaken and statistics relating to industrial accidents. However, these reports do not contain statistics relating to the staff of the labour inspectorate or the number of workers employed in the workplaces liable to inspection, and the statistics concerning violations and the penalties imposed are brief. In this regard, the Committee recalls that such data must be published as an integral part of an annual report on the work of the labour inspection services and communicated to the ILO (Article 20(1) of the Convention). The Committee once again requests that the Government take the necessary measures to ensure that an annual report is published containing information on each of the subjects listed in Article 21, including information on the labour inspection activities carried out throughout Peninsular Malaysia, Sarawak and Sabah, and that it is transmitted to the Office.

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