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

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Articles 3(2), 8, 10 and 16 of the Convention. Functions entrusted to inspectors. Number of labour inspectors throughout the structures of the labour inspectorate. Workplaces inspected as often and as thoroughly as necessary. The Committee notes the Government’s information in its report that there are respectively 348 labour inspectors in the Department of Labour (DOL) in Peninsular, 68 in Sabah and 73 in Sarawak. Moreover, there are 1,250 inspectors in the Department of Occupational Safety and Health (DOSH) and 279 inspectors in the Social Security Organisation (SOCSO). The Committee also notes the number of enterprises covered by the inspection services. The Government further states that inspection of workplaces is carried out at specific intervals ranging from 12 to 24 months in accordance with the legislations, in addition to inspection related to the investigation of complaints. However, the Committee notes the absence of information on the functions entrusted to inspectors. The Committee requests the Government to continue to provide information on the total number and distribution of labour inspection officers in Peninsular Malaysia, Sabah and Sarawak, deployed under the Department of Occupational Safety and Health and the Department of Labour, disaggregated by gender. It also requests the Government to provide statistic information on the number and the frequency of inspections performed in each field of supervision. The Committee finally requests the Government to provide detailed information on the functions entrusted and tasks performed by inspectors of the Department of Occupational Safety and Health and the Department of Labour, as well as the proportion of time devoted to each function.

Article 7. Training of labour inspectors. The Committee notes the Government’s indication in response to its previous requests that, upon appointment, labour officers are provided with induction training for a minimum of two weeks. All labour officers are also provided with basic knowledge on labour issues, including employment and occupational safety and health. Moreover, each department carries out in-house training occasionally throughout the career of labour inspectors. The Committee requests the Government to continue to provide specific information on the training activities provided to labour inspectors following their induction course, including on its duration, the number of participants and the subjects covered.

Article 13. Preventive measures in the area of occupational safety and health. The Committee previously noted that the highest number of industrial accidents, including fatal accidents, between 2008 and 2012 occurred in the manufacturing sector. In response to its previous requests the Committee notes the Government’s information regarding the number of inspections carried out by the DOSH in the construction sector, and the number and types of penalties imposed in 2017 in this sector. The Government also indicates that the increase in the number of reported fatal accident is, among others, due to the increase in the awareness of OSH and social security principles among employers and workers. The Committee further notes the statistics on occupational accidents available on the website of the DOSH, which indicates that, despite a decreasing trend in the number of occupational accidents, between 2018 and 2021, manufacturing remains the sector with the highest number of occupational accidents and fatalities. In addition, the Committee notes that the DOSH carried out strategic planning to enhance OSH standards through the implementation of the OSH Master Plan 2016–2020, and of specific plans for critical sectors, including construction and small and medium enterprises. The Committee requests the Government to continue to provide information on the preventive action taken by the labour inspectorate in critical sectors, including the manufacturing and construction sector, with a view to remedying defects observed in enterprises, layout or working methods, including the number of measures with immediate executory force in the event of imminent danger to the health or safety of workers. It also requests the Government to provide statistics on the number of occupational accidents and fatalities with a breakdown by sector.

Article 15(c). Confidentiality of complaints. In response to the requests of the Committee, the Government indicates that legislative provisions regarding the confidentiality of complaints include section 26 of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act of 2007, section 53 of the National Wages Consultative Council of 2011 and section 8 of the Whistle-blower Protection Act of 2010. The Government also states that it has always been the policy and practice of the Department of Labour to protect the confidentiality of the complaint. The Committee takes note of the Government’s information, which addresses its previous requests.

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 is published on the website of the Department of Labour and on the website of the Department of Occupational Safety and Health. The Committee also notes that annual reports are separately prepared by the Departments of Peninsular, Sabah and Sarawak and the Department of Occupational Safety and Health. The Committee requests the Government to provide information on the cooperation of different departments regarding reporting and date collection, as well as the measures taken to ensure the preparation of a consistent annual report, containing information on each of the subject listed in Article 21 of the Convention.

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Articles 3(2) and 5(a) of the Convention. Duties entrusted to labour inspectors and cooperation with other government services. The Committee 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. The Committee notes the information in the Government’s report that the enforcement role of labour inspectors in the Anti-Trafficking People and Smuggling of Migrants Act is limited to identifying elements of forced labour and trafficking in persons through inspection and other operation activities. The Government also indicates that it provides legal protection to all documented and undocumented foreign workers. The Committee requests the Government to indicate the measures taken to ensure that the functions assigned to labour inspectors do not interfere with the main objective of labour inspectors, which is to provide for the protection of workers in accordance with Article 3(1) of the Convention. It also requests the Government to provide detailed information on actions undertaken by labour inspectors when elements of forced labour or trafficking are detected, on the number of such cases and on their outcome after they are submitted to the competent authorities. The Committee further requests that the Government continue to provide information on actions 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.

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

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

Referring to its observation, the Committee wishes to raise the following additional points.

Articles 3(2), 8 and 10 of the Convention. Number of labour inspectors throughout the structures of the labour inspectorate, and the functions entrusted to them. Noting an absence of information on this point in the Government’s report, the Committee requests that the Government provide up-to-date information on the total number and distribution of labour inspection officers in Peninsular Malaysia, Sabah and Sarawak, deployed under both the Department of Occupational Safety and Health and the Department of Labour. To the extent possible, this information should be disaggregated by sex.

Article 7. Training of labour inspectors. The Committee notes the Government’s statement that newly recruited labour inspectors are required to undergo a compulsory induction course of between one and three months. Following this training period, inspectors may be given further exposure to specific relevant subjects, and may be sent to participate in training organized by other governmental agencies. The Committee requests that the Government provide specific information on the training activities provided to labour inspectors following their induction course, including on its duration, the number of participants and the subjects covered, as well as information on the impact of these activities on the application of the Convention.

Article 13. Preventive measures in the area of occupational safety and health. The Committee notes that, according to the report of the Ministry of Human Resources entitled Labour and Human Resources Statistics, the highest number of industrial accidents between 2008 and 2012 occurred in the manufacturing sector (16,684 accidents out of a total of 61,552 accidents in 2012), as well as the highest number of fatal accidents (173 out of 983). The Committee requests that the Government provide information on the preventive action taken by the labour inspectorate in the manufacturing sector, with a view to remedying defects observed in plant, layout or working methods, including the number of measures with immediate executory force in the event of imminent danger to the health or safety of workers.

Article 15(c). Confidentiality of complaints. The Committee once again observes that national legislation does not appear to contain provisions requiring labour inspectors to treat the source of any complaint bringing to their notice a defect or breach of legal provisions as absolutely confidential, and to give no intimation to the employer or their representative that a visit of inspection was made in consequence of the receipt of such a complaint. The Committee requests that the Government indicate whether national legislation imposes a duty of confidentiality in respect of complaints. If no such provisions exist, the Committee requests that the Government take the necessary measures in this regard to bring national legislation into conformity with Article 15(c) of the Convention. It also requests that the Government provide information on the measures taken in this respect, as well as information as to how in practice the confidentiality of complaints and their sources are guaranteed.

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

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.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

With reference to its observation, the Committee would also like to raise the following points.

Articles 2(1), 3(1), 5(a), 16, 17 and 23 of the Convention. Labour inspection and child labour. In relation to the measures taken or envisaged with a view to the active participation of labour inspectors in combating child labour, the Government refers to the 2011 amendments to the Children and Young Persons (Employment) Act, 1966, which the Committee noted in its observations under the Minimum Age Convention, 1973 (No. 138), and the Worst Forms of Child Labour Convention, 1999 (No. 182) in 2011. However, the Committee also notes that the Government indicates once again that no violations of the legal provisions relating to young persons and women were detected by labour inspectors. The Committee is therefore bound to observe that there does not seem to be any progress in relation to the enforcement of the national legal provisions relating to the employment of children and young persons that are enforceable by labour inspectors. The Committee once again asks the Government to describe the measures taken by the labour inspectorate with a view to combating child labour. Please provide information on the progress made in this regard and the number of infringements reported, investigations made, prosecutions initiated, convictions pronounced, sanctions applied, remedies provided, etc.

Article 7. Training of labour inspectors. The Committee notes the information in the annual report of the Department of Occupational Safety and Health (DOSH) that 195 training courses were organized in 2010, with nearly 75 per cent of the Department’s workforce participating. Close cooperation also continued with the Japan International Cooperation Agency (JICA) enabling 40 of the Department’s officers to undergo comprehensive training in selected occupational safety and health (OSH) areas in Japan. Furthermore, it notes from the annual report of the Labour Department for Sarawak, that 60 officers were trained in the area of labour legislation in 2010, including legislation relating to part-time workers. The Committee would be grateful if the Government would provide detailed information on the training courses provided for labour inspectors performing their duties within the Labour Departments of Sarawak, Sabah and Peninsular Malaysia, as well as the DOSH, including the frequency, duration, number of participants and subjects covered.

Articles 3(2), 8 and 10. Number of labour inspectors throughout the structures of the labour inspectorate, and the functions entrusted to them. The Committee notes that the Government has not provided comprehensive information on the number of labour inspectors in its report, nor is such information contained in the annual reports for 2010 of the Labour Departments for Peninsular Malaysia, Sabah and Sarawak and DOSH. It notes that there is a discrepancy between the number of 574 OSH inspectors in 2008, according to information provided by the Government, and the information in the 2010 DOSH annual report, according to which the number of factory and machinery inspectors as of 31 December 2010 was 341. The Committee similarly notes that, according to the 2010 Department of Labour Annual Report, there were 295 labour inspectors in Peninsular Malaysia, significantly less than the 322 labour inspectors accounted for by the Government in its previous report to the Committee.

Furthermore, the Committee notes that throughout the Government’s most recent report, as well as in previous reports and in various agencies’ annual reports, which are available on the Internet, the terms “labour inspector”, “officer” and “technical staff” are used interchangeably in order to refer to officials working under the auspices of the Department of Labour or of DOSH, or other officials, such as “administrative officers”, or “agricultural staff”. It is not clear from the information contained in the 2010 annual reports of the above Departments which categories of staff are entrusted with the various functions mentioned in the reports including, amongst others, employment services, the settlement of labour complaints and disputes, the issuance of private employment agency licences, various categories of work permits including work permits for non-residents, the settlement of compensation claims, inspections of certified machinery, such as steam boilers, unfired pressure vessels, lifts and elevators, etc.

The Committee wishes to refer to paragraph 69 of its General Survey 2006 on Labour Inspection where it underlined that the primary duties of inspectors are complex and require time and resources and that the Convention therefore stipulates in Article 3(2) that any further duties which are entrusted to labour inspectors should not be such as to interfere with the effective discharge of their primary duties (enforcement and advice).

Given the apparent ambiguity of the terms “labour inspector,” “labour officer” and “technical staff,” the Committee would be grateful if the Government would clarify the meaning and function of these terms and the functions associated with them.

The Committee would also be grateful if the Government would provide up-to-date information on the total number and distribution of labour inspection officers in Peninsular Malaysia, Sabah and Sarawak, deployed under both the DOSH and the Department of Labour. In so doing, the Government is requested to disaggregate the number of inspectors by sex.

Article 12. Powers of labour inspectors. The Committee notes that according to the Government, the Labour Ordinance Sabah (Cap. 67) and the Labour Ordinance Sarawak (Cap. 76), do not reiterate the provisions contained in the Employment Act 1955 (Act 265) regarding the possibility for labour inspectors to notify employers of their presence (unless they have reasonable grounds to believe that such notification might be prejudicial to the performance of their duties) as called for in Article 12(2) of the Convention; however, the Government refers to the technical standard MS ISO 9001:2008 which according to the Government complements the Ordinances and contains a relevant provision. The Committee notes that the referenced document contains standards for quality management systems, and no provisions on the powers of labour inspectors when assuming their primary functions under Article 3(1) of the Convention. The Committee therefore asks the Government to take measures to harmonize the Labour Ordinance Sabah (Cap. 67) and the Labour Ordinance Sarawak (Cap. 76) with the Employment Act 1955 (Act 265), in conformity with Article 12(2) of the Convention.

Article 15(c). Confidentiality of complaints. The Committee notes that neither the Employment Act, the Occupational Safety and Health Act (No. 514), the Factory and Machinery Act, nor the Sabah and Sarawak Ordinances, contain provisions regarding the requirement to treat as absolutely confidential the source of any complaint bringing to their notice a defect or breach of legal provisions and to give no intimation to the employer or his representative that a visit of inspection was made in consequence of the receipt of such complaint. The Committee asks the Government to indicate any legal texts establishing a duty of confidentiality of complaints or, in the absence of relevant provisions, to take the necessary measures to bring the national legislation into conformity with Article 15(c) of the Convention. The Committee would be grateful if the Government would keep the ILO informed in this regard and also provide information on how the confidentiality of complaints and their sources are guaranteed in practice.

Article 13. Preventive measures in the area of OSH. The Committee notes from the annual report of the DOSH for 2010 that the sectors of construction and manufacturing account for the highest number of fatal accidents. The Committee requests the Government to provide information and data on the preventive action taken by the labour inspectorate in these sectors with a view to remedying defects observed in plant, lay-out or working methods which labour inspectors may have reasonable cause to believe constitute a threat to the health or safety of the workers including measures with immediate executory force in the event of imminent danger to the health or safety of the workers, as provided for in Article 13 of the Convention.

Article 14 of the Convention. Notification to the inspectorate of industrial accidents and cases of occupational disease. The Committee notes from the 2010 report of the DOSH that there is no information on the number of investigations relating to industrial accidents, despite an increase in the number of industrial accidents reported to the department (from 2,386 in 2009 to 2,534 in 2010). Moreover, it notes that in 2010 a total of 1,427 cases of occupational disease and poisoning were reported to the Occupational Health Division, compared with 791 cases in 2009, and that 663 cases were reported from the province of Selangor. However, only 663 cases were investigated.

In this regard, the Committee notes from the information in the annual report of the DOSH for 2010 that the DOSH plans to conduct more training to enhance the understanding of its officers of the relevant law to ensure effective investigation of complaints and industrial accidents.

The Committee would be grateful if the Government would describe in detail the procedure for the notification and registration of occupational accidents and cases of occupational disease under the regulations of 2004 on the notification of accidents, dangerous occurrences, occupational poisoning and cases of occupational disease, and to describe the manner in which the labour inspectorate is notified of such occurrences so as to investigate them and, among other things, take measures to prevent their recurrence.

The Government is also requested to continue to provide data on the application of these provisions in practice in all territorial structures of the DOSH (number of industrial accidents and cases of occupational disease reported to the DOSH, number of investigations in this regard, findings and follow-up measures, including the sanctions imposed).

Articles 16, 17(2), 18 and 21(e). Violations and penalties imposed. Cooperation with the justice system. The Committee notes that according to the information available on the DOSH website, there were 28 prosecutions for OSH violations throughout Peninsular Malaysia, Sabah and Sarawak in 2011, 23 prosecutions for OSH violations in 2010, and 23 prosecutions for OSH violations in 2009. It considers that these figures do not appear to be in conformity with the figures reported in the 2010 DOSH annual report, which state that in 2010, there were 41 prosecutions under the Occupational Safety and Health Act, 1994, and subsidiary legislation, and 150 prosecutions under the Factory and Machine Act 1967 and subsidiary legislation. Moreover, neither the DOSH website nor the 2010 annual report appear to give a definitive account of how many workplaces were investigated under the auspices of DOSH during the reporting period. The Committee would be grateful if the Government would provide up-to-date information on the total number of workplaces inspected in Peninsular Malaysia, Sabah and Sarawak and the legal proceedings initiated by labour inspectors (number of referrals to the judicial authorities, number of cases dealt with by the courts, type of penalties imposed, legal provisions concerned, etc.).

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Articles 3(2) and 5(a) of the Convention. Duties entrusted to labour inspectors in relation to the enforcement of immigration law. The Committee notes the information in the Government’s report that there are no separate data available on labour inspection activities relating to migrant workers and that, contrary to the Government’s indications in its last report, any collaboration between the labour inspectorate and the Department of Immigration, the Department of Police or other relevant departments is not intended to enforce immigration law. Each department addresses its own issues which are under its jurisdiction and based on the legislations that it is responsible for enforcing. However, the Committee notes from the information contained in the annual reports of the Labour Department for Sabah, the Labour Department for Sarawak and the Labour Department for Peninsular Malaysia that, since the 2010 amendments to the Anti-Trafficking People and Smuggling of Migrants Act 2007, labour officers have assumed enforcement functions in this area.

The Committee observes that through the 2010 amendments, the title of the Act has been amended to “the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act,” and under section 27(1)(e) of the Act, all labour officers (including labour inspectors) are included among the enforcement officers for the purpose of the Act along with police officers, immigration officers, customs officers and the Malaysian Maritime Enforcement Agency Officers. A new section (Part IIIA) has been inserted specifically relating to the offense of smuggling of migrants and a distinction introduced between trafficked persons and “illegal migrants” who, according to the explanatory statement attached to the bill, “normally seek and finance the illegal migration themselves and the only danger of exploitation faced is cruel or inhuman or degrading treatment of being endangered in the course of their journey”. Indeed, while the Act still provides immunity to trafficking victims for immigration offences such as illegal entry, unlawful presence and possession of false travel documents (section 25) and entitles trafficked persons to victim care, section 51(1)(a) of the Act entrusts enforcement officers, including labour inspectors, with investigating into the circumstances of each case for the purpose of reporting to a magistrate as to whether a person is a trafficked person entitled to protection or otherwise qualifies as an “illegal migrant” who is excluded from the protection of the Act. Furthermore, in the case where victims are identified as trafficked persons by enforcement officers, section 51(3) provides that if the magistrate is satisfied that the person is a trafficked person who is a foreign national, he/she may order that such trafficked person be placed in a place of refuge for a period not exceeding three months and thereafter to release him to an immigration officer for necessary action in accordance with the provisions of the Immigration Act 1959/63. In case the magistrate finds that the person is not a trafficked person and is a foreign national, he/she may order that person to be released to an immigration officer for necessary action in accordance with the provisions of the Immigration Act 1959/63. Section 51(5) provides that an extension of the protection order may be granted only for the purpose of completing the recording of evidence by the trafficked person.

In relation to the scope of the Convention with regard to victims of trafficking or workers who have been smuggled into the country at their own will, the Committee would like to refer to paragraphs 76–78 of its 2006 General Survey on labour inspection, in which it emphasized, in relation to the assignment to labour inspectors of the task of supervising the legality of employment and prosecuting violations, including migrant workers in an irregular situation, 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, and that the Convention does not contain any provision suggesting that any worker be excluded from the protection afforded on account of their irregular employment status. Given the potentially large proportion of inspection activities devoted to verifying legality of immigration status, the Committee has emphasized that additional duties that are not aimed at securing the enforcement of the legal provisions relating to conditions of work and the protection of workers 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.

The Committee also wishes to emphasize that entrusting labour inspectors with the function of enforcing the Anti-Trafficking People and Smuggling of Migrants Act 2007, as amended, may not be conducive to the relationship of trust needed to create the climate of confidence that is essential for enlisting the cooperation of employers and workers with labour inspectors, as the final outcome seems to be that irrespective of their status as victim of trafficking or smuggled worker, foreign workers may be doubly penalized by not only losing their jobs, but also facing expulsion. The Committee recalls that the function of verifying the legality of employment should have as its corollary the reinstatement of the statutory rights of all the workers if it is to be compatible with the objective of the Convention. This objective can only be met if the workers covered are convinced that the primary task of the inspectorate is to enforce the legal provisions relating to conditions of work and the protection of workers.

The Committee therefore requests the Government to indicate the measures taken or envisaged, including the amendment of section 27(1) of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007, so as to ensure that the functions of enforcement officer in relation to trafficking in persons and smuggling of migrant workers are dissociated from those of inspecting the observance of workers’ rights.

The Committee would be grateful if the Government would describe the role of the labour inspectorate and the justice system in ensuring the application of sufficiently dissuasive sanctions against employers as well as the enforcement of employers’ obligations with regard to the rights of foreign workers in an irregular situation, irrespective of whether they have been smuggled or trafficked, such as the payment of wages, social security and other benefits for the period of their effective employment relationship even where they are subject to expulsion or after they have been expelled. The Committee asks the Government to provide information on the number of cases in which workers found to be in an irregular situation have been paid their due employment-related rights.

In cases where relevant provisions have not yet been adopted, the Committee requests the Government to take the necessary measures for the introduction of swift and effective procedures enabling foreign workers to recover wages and benefits due and to keep the Office informed.

Noting that foreign workers found to be smuggled are not granted immunity for immigration offences such as illegal entry, unlawful presence and possession of false travel documents, the Committee requests the Government to specify any sanctions imposed for these violations and to communicate the relevant legal texts.

Please also specify the nature of the cooperation between labour inspectors and police, immigration and customs officers in the exercise of their respective areas of competence.

Articles 5(a), 20 and 21 of the Convention. Obligation to publish and communicate an annual report on the work of the labour inspectorate and the value of registers of workplaces in this regard. The Committee notes that an annual report of the work of the labour inspection services has not been received. It notes however, that some elements relating to the subjects covered in Article 21 (a)–(g) of the Convention are provided in the annual reports for 2010 of the Department of Occupational Safety and Health (DOSH) and the Labour Departments for Peninsular Malaysia, Sabah and Sarawak, which are available through the website of the Ministry of Labour (MOHR). However, this information is insufficient to allow for an informed appreciation of the application of the Convention in practice. The Committee would like to recall that these data must be published as an integral part of an annual report on the work of the labour inspection services (Article 20(1) of the Convention).

In this regard, the Committee would like to draw the Government’s attention to its general observation of 2010, where it emphasized the benefits to be derived from drawing up and publishing an annual report on the work of the labour inspectorate. When well prepared, the annual report offers an indispensable basis for the evaluation of the results in practice of the activities of the labour inspection services and, subsequently, the determination of the means necessary to improve their services. In this context, it also recalled that the ILO supervisory bodies, including the Committee of Experts, based on all the information contained in the annual report, are able to provide support to governments in the most relevant manner possible in the implementation of the commitments deriving from the ratification of the Convention.

The Committee would also like to draw the Government’s attention, once again, to its general observation of 2009, in which it emphasized the importance of establishing and updating a register of workplaces and enterprises liable to inspection and the number of workers employed therein, which would provide the central labour inspection authorities with the data that are essential to prepare the annual report. Having previously noted the establishment of an electronic database system for the recording of new workplaces and data on inspection activities at the Labour Department Sarawak, the Committee hopes that such registers will also be established at the DOSH and the Labour Departments Sabah and Peninsular Malaysia, in order to enable the Government to fulfil its reporting obligations under the abovementioned Articles.

The Committee once again requests the Government to take all necessary measures under Articles 20 and 21 of the Convention with a view to publishing and transmitting to the Office an annual report on the work of the inspection services under the control of the central labour inspection authority in its entirety, including on the work of the DOSH and the Labour Departments Sarawak and Sabah. Please provide information on any steps taken in this regard.

In particular, please provide information on the efforts made to establish or, where appropriate, to improve a register of workplaces liable to inspection, including inter-institutional cooperation between the labour inspection services and other government bodies and public or private institutions (tax services, social security bodies, technical supervisory services, local administrations, the judicial authorities, occupational organizations, etc.) in possession of relevant data (Article 5 of the Convention).

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Amendment and implementation in practice of the legislation giving effect to the provisions of the Convention. Powers of labour inspectors. The Committee notes the lists of laws and regulations relevant to the work of the inspection services. In this connection, it observes that the operation of the Factories and Machinery Act 1967 (Act 139) is suspended in Sabah and Sarawak as from 1 July 1980, by virtue of a decision made by the Minister of Human Resources under the provisions of section 1(3) of the Act. The Committee would be grateful if the Government would indicate the specific instruments which regulate inspections of factories in Sabah and Sarawak.

Articles 3(1) and 17 of the Convention. Enforcement and advisory activities of the labour inspectorate. Referring to its previous direct request, the Committee takes note of the partial information supplied by the Government on the provisions relating to working conditions and the protection of workers in respect of vulnerable categories of workers. The Committee would be grateful if the Government would also describe the action undertaken by the labour inspectorate with a view to securing the enforcement of the legal provisions relating, in particular, to conditions of work and the protection of young persons, women and immigrant workers, and provide available statistical data on the number and nature of violations identified, sanctions imposed, remedies provided, etc.

Article 5. Effective cooperation with other government services and public institutions, and collaboration with employers, workers or their organizations. Further to its previous comments on this point, the Committee notes the information provided by the Government that the labour departments are in collaboration with the immigration and police departments and other relevant departments in relation to the establishment of a task force to combat irregular workers and the employers who hire them. In this connection, the Committee recalls paragraph 78 of its General Survey of 2006 on labour inspection in which, noting that inspections of clandestine work of illegal employment, which are increasingly closely linked to irregular migration, are carried out through a partnership between the labour inspectorate and other public administration bodies, it recalled that the primary duty of labour inspectors was to protect workers and not to enforce immigration law. The Committee therefore requests the Government to explain how this primary duty of labour inspectors is fulfilled in the context of actions with respect to irregular workers.

The Committee also notes that such collaboration aims at contributing to the preparation of legislation or standards by soliciting public comments or by disseminating information through dialogue, seminars and talk at the National Council for Safety and Health (NCOSH). The Committee requests the Government to provide information on its assessment of the practical impact of these collaborative activities. It would also appreciate if the Government would continue to provide up to date and documented information concerning any new collaboration of the labour inspectorate with other public institutions and the social partners, and of its practical results.

Article 12. Powers of labour inspectors. The Committee notes the copy provided by the Government of the Labour Ordinance Sabah (Cap. 67) and the Labour Ordinance Sarawak (Cap. 76), as amended. It observes that not all provisions are in line with relevant parts of the Employment Act 1955 (Act 265), contrary to the Government’s indication. In particular, section 66 of the Employment Act provides, in line with Article 12(2) of the Convention, that labour inspectors must notify the employer of their presence unless they have reasonable grounds to believe that such notification might be prejudicial to the performance of their duties. The Sabah and Sarawak Ordinances, however, do not contain such provisions. The Committee requests the Government to explain how Article 12(2) of the Convention is given effect under the Labour Ordinance Sabah (Cap. 67) and the Labour Ordinance Sarawak (Cap. 76).

Articles 17(2), 18 and 21. Violations and penalties imposed. Cooperation with the justice system. Further to its previous comments on this point, the Committee notes the information provided by the Government on the reason for the one single case of prosecution, as a result of the 3,288 inspections carried out in Sarawak in 2006, and how the case was established by the Magistrates’ Court. It also notes the number of cases referred to the courts by the labour inspectorate. The Committee would appreciate if the Government would continue to provide the relevant up-to-date information.

Article 21. Analysis of the results of labour inspection activities. Further to its last comments on this point, the Committee notes the Government’s clarification provided with respect to the terms “employer reprimanded” and “workers involved”. It also notes the indication by the Government that the seemingly contradictory relationships between the reduction in the number of inspections and the increase in the number of violations reported as regards Peninsula Malaysia in 2005 and 2006 was due to the improved quality of inspections. The Committee would appreciate if the Government would provide specific information concerning the measures taken to improve the quality of inspections. It also notes the explanation by the Government that the amendment of the Labour Ordinance Sarawak (Cap. 76) in October 2005 resulted in a wider use of the employers’ register book, which has been replaced since 2006 by the labour market database system. In this connection, the Committee notes that the statistics available from the Labour Department of Sabah concerning the evolution of the number of inspections indicate that the number rather decreased substantially in 2007 and then increased back to the 2005 level in 2008. The Committee requests the Government to provide information on any similar measures to those implemented in Sarawak, which may have been taken since the amendment of the Labour Ordinance Sabah (Cap. 67).

Collection and contents of statistical information on the work of the labour inspection services. The Committee notes the various information concerning: (i) the statistical data and information for 2008 provided by the labour departments; laws and regulations relevant to the work of the inspection services; number of inspecting officers; number of workplaces liable to inspection; number of inspection visits; information on the size of workplaces inspected; number and percentage of employers not complying with the labour legislation; and statistics of industrial accidents; and (ii) the statistical data and information for the period 2006–08 provided by the Department of Occupational Safety and Health (DOSH): laws and regulations relevant to the work of the inspection services; number of inspecting officers; number of workplaces liable to inspection; number of inspection visits by types of workplace; legislation on occupational safety and health (OSH) and industrial sectors; statistics of violations and penalties imposed; and number of industrial accidents and occupational diseases.

With respect to the abovementioned set of information in (i), the Committee observes that the total number of workplaces inspected in Peninsular Malaysia in 2008 (data No. 3) and the total number of workplaces inspected in Peninsular Malaysia in 2008, disaggregated by the size of establishments (data No. 4) differ nearly by 10,000, and that the difference between data No. 3 and the number of workplaces inspected (data No. 2) differ by nearly 1,200. The total number of industrial accidents reported to the labour departments and the social security organizations in 2008 is different from the number provided by the labour departments and the number provided by the DOSH. The Committee requests the Government to clarify the correct total number of workplaces inspected. While appreciating the breakdown by sex provided by the Government concerning the number of workers inspected, the Committee would appreciate if the Government would provide the same disaggregation on the number of inspectors (data No. 1), in view of the provisions under Article 8 of the Convention. As regards the information on the number of workplaces inspected and violations of the labour legislation (data No. 5), please provide the disaggregation by region and the law concerned, indicating the number and nature of violations identified.

Concerning the information in (ii), the Committee observes that, as regards the numbers of inspection officers (data (a)), while the number of technical staff increased considerably between 2006 and 2007, it decreased in 2008 below the 2006 level. On the other hand, the number of administrative and diplomatic officers more than tripled between 2007 and 2008. The number of agricultural staff nearly doubled between 2007 and 2008. In view of these changes, the Committee would appreciate if the Government would explain the evolution of the general policy of the OSH inspection, which may explain the reasons for the abovementioned changes in the number of specific categories of inspection officers. The Government is also requested to provide the data on the number of OSH inspecting officers, disaggregated by sex, in view of the provisions under Article 8 of the Convention.

Labour inspection and child labour. The Committee notes the Government’s indication that the labour departments have been engaged in consultations with the police and the Immigration Department in respect of the employment of child workers, including awareness raising among employers on child labour and the related legislation. Periodic meetings and cooperation are carried out with the agencies under the Ministry of Human Resources in relation to issues on the protection of children dealt with under the Child Act 2001 (Act 611). The Committee also notes the references made by the Government to the provisions of the legislation of Peninsular Malaysia, Sabah and Sarawak concerning the employment of children and young persons. It further recalls the information provided by the Government on the role played by the labour inspectorate in ascertaining cases of child labour, as mentioned in its observation of 2009 under Convention No. 182. The Committee would be grateful if the Government would continue to provide information on any up to date and documented legislative, administrative or practical measures taken or envisaged with a view to realizing active participation of labour inspectors in combating child labour in establishments covered by the Convention.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Articles 20 and 21 of the Convention. Annual report on the work of the inspection services. The Committee notes the Government’s report which contains detailed statistical information on labour inspections and inspections on occupational safety and health, with respect to Peninsular Malaysia, Sabah and Sarawak. It notes with interest that the information provided corresponds to the requirements under Article 21 of the Convention. The Committee also notes the Government’s indication that each one of the 11 agencies under the auspices of the Ministry of Human Resources (MOHR) produces its own annual report, and that the statistics reflecting common data are available on the MOHR’s web site. The Committee wishes to indicate that these data must be published as an integral part of an annual report on the work of the inspection services (Article 20(1)) within a reasonable time after the end of the year and in any case within 12 months (Article 20(2)). In this connection, the Committee recalls its General Observation of 2009, in which the Committee referred to the use of statistical data both at the international and national levels, indicating that at the national level, such data would allow assessment of the rate of coverage by labour inspection services in relation to their scope, as defined in national legislation. Such assessment could then be used for the determination of the appropriate number of labour inspectors and the necessary material resources for the discharge of their functions (Articles 10, 11 and 16), or for the provision of training (Article 7). With these factors identified, an appropriate budget to meet the justified and quantified needs of labour inspection could then be allocated, according to the national financial possibilities. At the international level, these data would allow for an assessment of the implementation of the Convention in practice (Article 20(3)). Accordingly, the Committee requests the Government to take all necessary measures with a view to compiling and publishing an annual report of the labour inspection services, containing such data as contained in the Government’s report, and to send a copy to the Office, as required under Articles 20 and 21 of the Convention.

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

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

With reference to its observation, the Committee requests the Government to provide additional information on the following points.

Amendment and implementation in practice of the legislation giving effect to the provisions of the Convention. The Committee notes that, according to the Government, the provisions of the Labour Ordinance Sarawak (Cap. 76) and the Labour Ordinance Sabah (Cap. 67) were amended in 2004 to bring them into line with the provisions of the Employment Act, 1955. The Committee would be grateful if the Government would provide copies of these two Ordinances, as amended, the original texts and information on their application in practice since their entry into force in 2005.

Analysis of the results of labour inspection activities. According to the data provided by the Government concerning Peninsula Malaysia between 2005 and 2006, the number of inspections carried out fell significantly (from 57,420 to 44,522), while the numbers of “employers reprimanded” almost doubled (from 6,385 to 12,380). In Sarawak, the number of workplaces liable to inspection rose from 27,272 to 40,469 over the same period, the number of fatal industrial accidents reported more than doubled (from 33 to 69), while the number of other types of industrial accidents rose by around 30 per cent. The Committee would be grateful if the Government would indicate the meaning of the expressions “employer reprimanded” and “worker involved” used in the statistics for Peninsula Malaysia. It also requests the Government to indicate the reasons for: (i) the seemingly contradictory relationships between the reduction in the number of inspections and the increase in the number of violations reported in the region; and (ii) the significant increase in the number or workplaces liable to inspection in Sarawak.

The Committee would be grateful if the Government would also provide the available data on the distribution by branch of activity of occupational accidents in Sarawak for the years 2005 and 2006, take measures to reduce that number and, in so far as possible, the risk factors identified, and provide a description of these measures and of any action taken against the employers concerned (administrative or judicial action).

Article 3, paragraph 1. Enforcement and advisory activities of the labour inspectorate. The Committee requests the Government to indicate precisely the source and content of the legal provisions liable to supervision by labour inspectors and to describe the action undertaken by the labour inspectorate with a view to securing the enforcement of the legal provisions relating principally to conditions of work and the protection of workers in respect of vulnerable categories of workers, such as young persons, women and immigrant workers.

Article 5(a) and (b). Effective cooperation with other government services and public institutions, and collaboration with employers, workers or their organizations. The Committee requests the Government to indicate whether measures have been taken to promote effective cooperation between the inspection services and other public institutions and services, such as the judicial and fiscal authorities, social insurance institutions and bodies responsible for the protection of children established under the Malaysia Child Act, 2001. If so, it requests the Government to provide examples of cooperation and an assessment of its impact.

With reference to the guidance contained in Part II of the Labour Inspection Recommendation, 1947 (No. 81), on the various possible forms of collaboration between officials of the labour inspectorate and employers and workers or their organizations (establishment of safety and health committees, organization of lectures, dissemination of documentation, etc.), the Committee requests the Government to describe, where appropriate, the nature and results of such collaboration.

Articles 17, paragraph 2, 18 and 21. Violations reported, prosecutions and penalties imposed. According to the data provided by the Government, one single case of violation gave rise to prosecution as a result of the 3,288 inspections carried out in Sarawak in 2006. No relevant data were provided concerning Peninsula Malaysia. The Committee requests the Government to indicate in its next report the reason for the single case of prosecution. With reference to its general observation of 2007, in which it emphasizes the value of effective cooperation between the inspection services and the justice system for an effective contribution to the progressive improvement of conditions of work, the Committee would be grateful if the Government would indicate whether appropriate measures have been taken, in accordance with Article 5(a), to promote such cooperation. If not, it hopes that the Government will not fail to take such measures and to keep the Office informed rapidly.

The Committee requests the Government to provide information in its next report on the number of cases referred to the courts by the labour inspectorate throughout the country, with an indication of the fields concerned.

Collection and content of statistical information on the work of the labour inspection services. Further to its observation, in which it emphasizes the need to ensure the publication and communication to the Office of an annual report on the work of the labour inspection services, the Committee wishes to draw the Government’s attention to Paragraph 9 of the Labour Inspection Recommendation, 1947 (No. 81), in relation to the desirable level of detail of the information that should be contained in the annual report. While awaiting an annual report as envisaged in Articles 20 and 21 of the Convention, the Committee hopes that the Government will be in a position to provide the available data in its next report on the composition and geographical distribution of the staff of the labour inspection services, the total number of workplaces liable to inspection, the number of workers employed therein, in so far as possible disaggregated by sex, category (young workers, migrant workers, etc.), the number and types of inspection visits carried out (first inspection, inspection to verify the implementation of an order), the type and size of the workplaces inspected, the violations reported and penalties imposed, as well as the available data on employment accidents (the economic sectors concerned) and cases of occupational disease (the economic sectors concerned).

Labour inspection and child labour. With reference to its general observation of 1999, the Committee would be grateful if the Government would keep the ILO informed of any legislative or practical measures adopted for the active participation of labour inspectors in combating child labour in the industrial and commercial workplaces covered by the Convention. It requests the Government to provide a detailed description, with details of their impact.

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

Articles 20 and 21 of the Convention. Functioning of the inspection system. Annual report on the work of the inspection services. Noting the statistics provided by the Government in its report for the years 2004, 2005 and 2006, the Committee observes that the data relating to Peninsula Malaysia only indicate the number of inspections carried out, the number of employers reprimanded and the number of employees involved, and that the figures for 2005 and 2006 relating to Sarawak indicate the number of men and women inspectors, the number of workplaces liable to inspection, the number of inspection visits, the number of persons employed in the workplaces visited, the number of prosecutions and the number of industrial accidents reported. No data are provided for Sabah. Such fragmentary data, covering different elements for each of the regions covered, do not offer a global view of the functioning of the inspection system nor, as a consequence, a basis for determining the measures for its improvement.

In reply to the comments that the Committee has been making for many years concerning the failure to publish and communicate to the ILO an annual report on the work of the inspection service, the Government indicates once again that each year a report is prepared by each department of the ministry and that the report of the Department of Occupational Safety and Health has already been published on the Internet. The Committee observes that this report briefly indicates the total number of inspections carried out in factories, installations involving machinery and construction sites for the years 1999–2003, with the exclusion of any data allowing the identification of the categories of workplaces inspected, the legislative fields addressed or the results of inspections, such as the number of violations reported, the action taken on these violations in terms of issuing warnings, the imposition of administrative penalties or prosecutions. The Committee is therefore bound to regret once again that no annual report on the work of the labour inspection services, as required by the Convention, has been communicated to the ILO, despite its reiterated requests. It invites the Government to refer to paragraphs 331 to 333 of its General Survey of 2006 on labour inspection, which emphasize the importance of the availability of such a report so as to be able to assess the operation of the labour inspection system, identify priorities for its improvement and determine the resources that need to be allocated in the context of the national budget. The Government is requested to ensure that the central inspection authority is very soon in a position to collect, based on uniform instructions to the services placed under its authority, information that is as detailed as possible on each of the items covered by clauses (a) to (g) of Article 21 of the Convention, and to include this information in the annual report to be published and communicated to the ILO within the time limits set out in Article 20.

The Committee is also addressing a request directly to the Government on certain points.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

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

Publication of an annual report. The Committee regrets to note that, although the Government indicates in its report that an annual report is compiled by the labour inspectorate, it has nevertheless omitted to transmit this report. With reference to the repeated requests that it has been making for many years in this connection, the Committee trusts that the Government will take the necessary measures in the near future to ensure that the annual report required by Articles 20 and 21 of the Convention is published and transmitted to the ILO.

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

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

Publication of an annual report. The Committee regrets to note that, although the Government indicates in its report that an annual report is compiled by the labour inspectorate, it has nevertheless omitted to transmit this report. With reference to the repeated requests that it has been making for many years in this connection, the Committee trusts that the Government will take the necessary measures in the near future to ensure that the annual report required by Articles 20 and 21 of the Convention is published and transmitted to the ILO.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report and the replies to its previous comments. It notes in particular, its indication that the new preventive approach to labour inspection has improved the education of both employers and employees. The Government indicates that dialogue between employers and employees has increased and that many consultations have been held in 2000-02. However, despite the Committee’s repeated requests and the Government’s promises, no annual inspection report has been received for many years, precluding any assessment of the practical impact of the new preventive approaches, as no data, such as statistics of violations reported and penalties imposed or statistics of cases of occupational disease, is provided. The Committee once again requests the Government to take all necessary measures to ensure, in accordance with Article 20 of the Convention, that an annual inspection report containing the information requested under Article 21 is published and transmitted to the ILO.

The Committee also requests the Government to indicate to which organizations of employers and workers the report has been sent and to transmit any comments made by such organizations, in accordance with article 23, paragraph 2 of the Constitution of the ILO.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s brief report. It notes that there is no reply to its previous comments.

Referring to its previous observation, the Committee requests the Government to supply information on the effect of implementation of the new preventive approach to labour inspection through the use of the media and consultations with employers and workers on the application of labour legislation covered by the Convention.

The Government is also requested to supply information on the measures already requested by the Committee as to how effect is given in law and in practice to Article 14 of the Convention laying down that the labour inspection service shall be notified of industrial accidents and cases of occupational disease in such cases and in such manner as may be prescribed by national laws or regulations.

Noting that, despite the Government’s affirmation that an annual inspection report is prepared regularly, to date none of these reports has been received by the ILO, the Committee would be grateful if the Government would take all appropriate measures to ensure in future that an annual inspection report containing information on the subjects listed in Article 21 is published and communicated to the ILO within the time limits laid down in Article 20.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

With reference also to its observation, the Committee draws the Government’s attention to the following points.

1.  Recording of industrial accidents and occupational diseases.  On many occasions, and in its general observation of 1996, the Committee has emphasized the need to take measures enabling the central authority to obtain and transmit to the ILO the information required by Article 21(f) and (g) on industrial accidents and occupational diseases. The Committee notes in this respect that the Labour Department is only responsible for the recording of industrial accidents affecting foreign employees covered by the Workmen’s Compensation Act. Furthermore, the statistical data provided with the report on the number of workplaces inspected and economic sectors only cover a part of the country and do not include inspections in relation to occupational safety and health which, it is indicated, are the responsibility of the Department of Occupational Safety and Health and the Social Security Organization. The Committee would be grateful if the Government would provide additional information on the manner in which effect is given to Article 14, which provides that the labour inspectorate shall be notified of industrial accidents and cases of occupational disease in such cases and in such manner as may be prescribed by national laws or regulations.

2.  Central inspection authority and annual inspection report. The Committee notes that the ILO has not received any annual inspection report, despite the undertaking made by the Government in this respect in its report for 1995, and it is bound to emphasize once again the need to designate the central authority with responsibility, in accordance with Article 4, for the supervision and control of labour inspection and, in accordance with Article 20, for the publication and transmission to the ILO of an annual general report on the work of the inspection services under its control. It requests the Government to take the appropriate measures to give effect to these provisions of the Convention and to report them in its next report. It also trusts that an annual inspection report containing all the information required under Article 21(a) to (g) will be published in the near future and transmitted to the ILO within the required time limits.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee takes due note of the various activities and measures taken in recent years to strengthen the performance of the labour inspectorate. It also notes with interest the adoption of the Occupational Safety and Health Act, 1994, which supplements the provisions of the Factories and Machinery Act, 1967. In its previous comments, the Committee welcomed the many measures taken with a view to the rationalization of the use of human resources and the distribution of responsibilities in the field of labour inspection. It notes that the start-up of operations by the National Institute of Occupational Safety and Health, which was established in 1992, has relieved the Labour Department of a number of functions and has contributed to minimizing the involvement of labour officers in the planning and implementation of training activities for industry. It also notes that, as a result of the restructuring of the inspection services into two sections with different responsibilities, some 80 per cent of field inspectors are assigned to pure inspection duties and that as a result the number of inspections rose from 69,107 in 1993 to 83,667 in 1994. In its report for 1999, the Government refers to the adoption of a new approach to inspection which places greater emphasis on preventive measures. The media are used for educational programmes on various aspects of labour law, and consultations are organized with employers and workers at the workplace and in labour offices. The Committee hopes that the Government will not fail to provide information in future reports on the effects of these measures in the areas of labour legislation covered by the Convention.

The Committee is addressing a request directly to the Government on other points.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

Further to its previous comments, the Committee notes the information contained in the Government's report. It would be grateful if the Government would provide more clarifications on the points raised below.

Articles 3, paragraph 2; 9, 10 and 16 of the Convention. The Committee notes that the Government's report does not directly reply to its previous comments regarding the increase in non-inspection work performed by inspectors that was preventing an increase of the number of inspection visits to a desired level. The Government's report indicates that there has been an organizational restructuring of the inspection system with regional offices being divided into two sections, namely the enforcement service carrying out routine statutory inspections of workplaces and machinery and the technical services performing non-routine functions such as accident investigation, prosecution, promotion and approvals. The Committee further notes that the Government is preparing the introduction, in early 1995, of a comprehensive integrated inspection check-list with assessment standards that will allow quantification of the safety and health standards of workplaces and thus facilitating integrated inspection visits that are more objective and of a higher quality. The Government also states in its report that it expects the introduction of the integrated system of inspection to replace the separate but redundant statutory inspections for safety and for hygiene matters, to permit a more flexible, efficient and effective use of limited manpower in this respect. The Government also expects the introduction in 1994 of a new system of inspection by sector regarding statutory inspections, to provide a clearer picture of the various situations within a sector throughout the different states through the comparison of data and better planning. It further states that this should also help ensure that workplaces are inspected as often and as thoroughly as is necessary within the meaning of Article 16 of the Convention. The Committee welcomes the measures taken and those that are in the process of introduction or planning aimed at ensuring a better application of these provisions of the Convention. The Committee hopes the Government will continue to provide full details of developments in this respect.

Article 5(b). Further to its previous comments relating to the observations of the Malaysian Trades Union Congress (MTUC) of 1989, the Committee notes the Government's reply concerning the changes introduced thus far as well as the enactment, at the initiative of the tripartite National Advisory Council for Occupational Safety and Health, of the 1994 Occupational Safety and Health Act (OSHA), which Act is based on the concept of self-regulation and places the primary responsibility for ensuring safety and health at the workplace on employers and workers. The Government states that the OSHA incorporates provisions promoting proactive consultations and cooperation between the Government, management and workers in efforts to maintain and upgrade safety and health at work as evidenced by its sections that provide for the formation of a tripartite National Council for Occupational Safety and Health to replace the National Advisory Council and the creation of safety and health committees in places of work having at least 40 workers. The Committee hopes these measures will in practice enable the Government to ensure the collaboration between officials of the labour inspectorate and employers and workers or their organizations as required by this Article of the Convention. The Committee would be also grateful if the Government would supply a copy of the OSHA of 1994 with its next report.

Articles 17 and 18. The Committee notes the information supplied by the Government in reply to its previous comments which related to the observations of the MTUC of 1989 concerning the inadequacy of the penalties for violation of enforceable provisions and for obstruction of inspectors. The Government indicates the OSHA provides for more severe penalties.

Articles 20 and 21. The Committee recalls its previous comments where it expressed the hope that annual inspection reports will be published and transmitted to the Office within the periods prescribed by Article 20 of the Convention and that they will contain all the required information, particularly statistics of workplaces liable to inspection and numbers of workers employed in them (Article 21(c), as well as statistics of violations and penalties imposed (Article 21(e)).

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

Further to its previous comments, the Committee has taken note of the Government's reply and the Report of the Labour Department as regards inspection activities in 1989-90. It recalls also the earlier observations made by the Malaysian Trades Union Congress (MTUC).

Article 3(2) of the Convention. The Committee notes from the report that, as the workload on labour officers in other areas of activity than inspection is increasing, visits for the detection of non-compliance with the law cannot be increased to a desired level. It hopes the Government will nevertheless endeavour to ensure that the further duties given to inspectors do not interfere with the effective discharge of their primary inspection duties and that it will provide full information in the next report on the Convention.

Article 5. (a) The Committee notes the recommendations in the Annual Report for 1989/90 of the Factories and Machinery Deparment (FMD). It would be glad to know what cooperation exists between the FMD and the Labour Department in the implementation of the Convention.

(b) The Committee recalls the view of the MTUC that not much had been done to increase collaboration between the labour inspectorate and workers or their organizations. It notes also the statement in the report as to the need for self-auditing by employers to ensure the law is complied with and for employees to know their obligations and rights. Further, the report states that the percentage of organized labour is small, so that the vast majority of employees in the private sector are wholly dependent on the Labour Department for the establishment and enforcement of labour standards and conditions of employment. At the same time, the FMD has pointed to a misconception among employers and workers that responsibility for occupational safety and health lies solely with the Government. The Committee hopes the Government will indicate the measures taken to ensure the necessary collaboration with both employers and workers or their organizations, as required by this Article.

Articles 9, 10 and 16. The Committee notes from the Government's reply and the tables for 1990 and 1991 and the 1989-90 report that numbers of inspectors have not grown to match numbers of places of employment, so that the frequency of inspections has deteriorated to the point where places of employment are visited only once every six years. The MTUC especially drew attention to the lack of specialists and technical experts carrying out inspections, and to the general lack of thoroughness of inspections. The Committee hopes the next report on the Convention will include details of the effect of the new strategy mentioned in the report, involving listing of priorities for inspection so that, as required by the Convention, workplaces may be inspected as often and as thoroughly as necessary to ensure the effective application of legislation.

Articles 17 and 18. The Committee recalls the MTUC view that penalties for violation of enforceable provisions and for obstruction of inspectors are inadequate. It notes too the 1989-90 report's statement that the Labour Department has adopted a "facilitative" approach to enforcement, as manifested by the decline in numbers of prosecutions. The Committee hopes the next report on the Convention will include the Government's present views in this respect, as well as information on any revision of levels of penalties.

Articles 20 and 21. The Committee hopes annual labour inspection reports will be published and transmitted to the Office within the periods prescribed and will contain all the required information, particularly statistics of workplaces liable to inspection and numbers of workers employed in them (Article 21(c)), as well as statistics of violations and penalties imposed (Article 21(e)).

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

Articles 20 and 21 of the Convention. Further to its previous comments, the Committee notes that the annual inspection reports have not been received. It hopes that they will soon be transmitted and will contain all the necessary information.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

Articles 20 and 21 of the Convention. The Committee takes note of the 1985-86 Labour and Manpower Report and of the statistics of the number of staff in the Labour Inspection Service. It hopes that, in future, information on all the subjects listed at Article 21 will be included in the report and that the report will be published and transmitted to the International Labour Office within the time-limits laid down at Article 20.