Texts of pending comments

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.

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.

The Committee notes the observations of the Malaysian Trades Union Congress (MTUC), received on 30 August 2019, denouncing violations of the Convention in practice, including numerous instances of anti-union discrimination, employer interference and violations of the right to collective bargaining in a number of enterprises. The Committee further notes that specific violations of the Convention in practice were also previously denounced in the 2016, 2017 and 2018 observations of the International Trade Union Confederation (ITUC) and the 2015 MTUC observations and regrets that the Government has not yet provided its reply to these concerns. The Committee requests the Government to take the necessary measures to address all of the above allegations, in particular to ensure that allegations of anti-union discrimination and interference are rapidly investigated, that effective remedies are ordered and that sufficiently dissuasive sanctions are imposed on the perpetrators. The Committee trusts that the Government will be in a position to provide detailed information in this regard.

Ongoing legislative reform. The Committee previously noted that a holistic review of the main labour laws (including the Employment Act, 1955, the Trade Union Act, 1959 and the Industrial Relations Act, 1967 (IRA)) was ongoing in the country. The Committee welcomes the Government’s indication that it has been working closely with the Office in the labour law review and that the IRA has been amended through the Industrial Relations (Amendment) Act, 2020, with effect from January 2021. The Committee will address the amendments to the IRA in more detail below. It further notes the Government’s statement that the Employment Act and the Trade Union Act are currently undergoing the due processes to be amended and tabled at the Parliament. The Committee trusts that the Government’s continued cooperation with the Office will facilitate the review of the Employment Act and the Trade Union Act and contribute to achieving full conformity of these laws with the Convention. The Committee requests the Government to provide information on any developments in this regard.

Article 1 of the Convention. Adequate protection against anti-union discrimination. Effective remedies and sufficiently dissuasive sanctions. In its previous comment, the Committee requested the Government to provide detailed information on the general remedies effectively imposed for acts of anti-union discrimination dealt with through sections 5 and 8 of the IRA (referral of a complaint to the Director-General or to the Industrial Court and used in the vast majority of reported anti-union discrimination cases), as well as the sanctions and measures of compensation in relation to anti-union discrimination acts under section 59 of the IRA (a process before a criminal court with a higher standard of proof (beyond reasonable doubt), explicitly providing for penal sanctions and the possibility of reinstatement, but only used in less than 6 per cent of reported cases). In light of that information, the Committee requested the Government to take any necessary measures to ensure that the rules and procedures relating to anti-union discrimination afford adequate protection, without placing on victims a burden of proof that constitutes a major obstacle to establishing liability and ensuring an appropriate remedy.

The Committee notes that, with a view to expediting the procedure with respect to anti-union discrimination, the Government indicates that under section 8 as amended, the Director-General of Industrial Relations may take any steps or make enquires to resolve the matter and if not solved, may, if he/she thinks fit, refer the matter directly to the Industrial Court without having to first refer the matter to the Minister. The Committee observes however that the Director-General would appear to retain certain discretion in this regard and it is not evident on what basis the decision not to refer a case would be made. As regards effective remedies for anti-union discrimination, the Committee notes the Government’s indication that the amendments to section 30(6A) of the IRA allow the Industrial Court to have at its disposal a full range of remedies to be awarded to a worker dismissed for anti-union reasons. In this respect, the Committee further observes with interest that: (i) section 33B of the IRA, as amended, stipulates that an award of the Industrial Court for reinstatement or reemployment of a worker may not be subject to a stay of proceedings by any court; and (ii) pursuant to new section 33C, a worker dissatisfied with an award of the Industrial Court may appeal to the High Court within 14 days of receiving the award, suggesting that the Industrial Court’s decision will be subject to appeal on facts and law. While welcoming these amendments, the Committee observes that the Government does not provide information on the remedies imposed in practice for acts of anti-union discrimination dealt with through section 8 of the IRA, nor on the sanctions and measures of compensation awarded in practice for anti-union discrimination acts under section 59 of the IRA. The Committee therefore requests the Government once again to: (i) provide detailed information on the general remedies imposed in practice for acts of anti-union discrimination dealt with through sections 5, 8 and 20 of the IRA, whether by the Director-General or the Industrial Court, especially in view of the above amendments to the relevant provisions, as well as on the sanctions and measures of compensation awarded in practice in relation to anti-union discrimination acts under section 59 of the IRA; (ii) in light of this information, to take any necessary measures to ensure that workers who are victims of anti-union discrimination can lodge a complaint directly before the courts in order to access expeditiously adequate compensation and the imposition of sufficiently dissuasive sanctions and recalls its recommendation to consider reversal of the burden of proof once a prima facie case is made; and (iii) to provide information on the average duration of the proceedings under section 8 of the IRA, in view of the amendments to expedite the process, as well as on the number of cases in which the complaint was resolved by the Director-General, as opposed to instances referred to the Industrial Court.

Articles 2 and 4. Trade union recognition for purposes of collective bargaining. Criteria and procedure for recognition. Exclusive bargaining agent. The Committee recalls that under section 9 of the IRA, when an employer rejects a union’s claim for voluntary recognition for the purpose of collective bargaining, the union has to inform the Director-General who should take appropriate action, including a competency check through a secret ballot, to ascertain whether the union has secured the required ballot (50 per cent plus one) of the workers or class of workers, in respect of whom recognition is being sought. Having observed the concerns raised by the MTUC and the ITUC in this regard (the use of the total number of workers on the date of the request and not at the time of the ballot, leading to large discrepancies, as well as the lack of protection against employer interference in the secret ballot procedure), the Committee requested the Government to take the necessary steps to ensure that the recognition process provides safeguards to prevent acts of interference and that if no union reaches the required majority to be declared the exclusive bargaining agent, minority trade unions should be able to negotiate, jointly or separately, at least on behalf of their own members.

The Committee notes the Government’s indication that: (i) the recognition process was reviewed, in consultation with the social partners, and is, in the Government’s view, adequate; (ii) concerns pertaining to the formula currently used for the secret ballot have been acknowledged and will be reviewed subject to consultations and views from stakeholders through the National Labour Advisory Council; (iii) a simple majority is a minimum requirement which will be maintained in order for a trade union to become exclusive bargaining agent and the social partners agree with it; and (iv) the Government continuously takes the necessary steps to ensure that the recognition process provides safeguards to prevent acts of interference and the parties may lodge a complaint in case of interference under section 8 and 18 of the IRA. The Committee observes in this regard that the main amendments to section 9 relate to expediting the process, addressed in more detail below, and to clarifying that, in case of refusal to grant recognition by the employer: (i) the Director-General shall ascertain the scope of membership of the trade union on the date of the claim, whether it is in accordance with the union’s constitution (instead of ascertaining the competence of the trade union to represent the workers concerned, as previously stipulated by the IRA); and (ii) by way of secret ballot, the Director-General, shall ascertain the percentage of workers, in respect of whom recognition is being sought, who indicate support for the trade union making the claim (instead of ascertaining the percentage of workers who are members of the trade union making the claim, as previously stipulated). While taking due note of the above, the Committee observes that the Government does not provide details as to the steps it indicates it is taking to ensure safeguards against employer interference during the recognition process and understands from the Government’s report that the formula used in the secret ballot by the Director-General to ascertain the percentage of workers who support the union, in case of employer’s refusal to grant recognition (denounced by the MTUC and the ITUC), needs to be further reviewed. It observes that the Committee on Freedom of Association also examined allegations of employers’ refusal to recognize trade unions as collective bargaining agents and the weaknesses of the existing secret ballot process and referred the legislative aspect of the case to this Committee (see Case No. 3334, 391st Report, October 2019, paragraphs 374 and 382 and 393rd Report, March 2021, paragraphs 28 and 31). The Committee wishes to recall in this regard that the recognition procedure should seek to assess the representativeness existing at the time the ballot vote takes place to take into consideration the actual size of the workforce in the bargaining unit and that the process should provide safeguards to prevent acts of employer interference. In line with the above, the Committee trusts that any further necessary amendments will be made to the secret ballot process, in consultation with the social partners, so as to effectively address the concerns raised by the trade unions in this respect, and to ensure that the recognition process as a whole, regarding both the initial employer response and the verification procedure with the Director-General, provides safeguards to prevent acts of employer interference. The Committee trusts that the amendments already made to the recognition process will contribute to these efforts and requests the Government to indicate their effect in practice. The Committee further requests the Government to provide additional details on the steps the Government indicates it is taking to ensure sufficient safeguards against employer interference in the recognition process.

The Committee further observes, in relation to the recognition procedure and the right to collective bargaining, that additional amendments were made to the IRA, but are not yet in force, adding new section 12A relating to exclusive bargaining rights. The Committee understands that this provision was introduced to govern situations where more than one trade union obtains recognition for the purpose of collective bargaining and provides for a procedure to determine which trade union will benefit from the exclusive bargaining rights to represent the workers (agreement among the unions or determination by the Director-General, including through a secret ballot based on the highest number of votes). Noting in this regard the Government’s general indication that simple majority is a requirement for a trade union to become an exclusive bargaining agent but observing that the law does not make reference to this threshold, the Committee requests the Government to specify the manner in which collective bargaining rights are granted and exercised when no trade union has reached the 50 per cent requirement once section 12A comes into force and to provide information on its application in practice. In this regard, the Committee also requests the Government to indicate whether in situations where no union is declared the exclusive bargaining agent, collective bargaining can be exercised, jointly or separately, by all unions in the unit, at least on behalf of their own members.

Duration of recognition proceedings. In its previous comment, the Committee requested the Government to provide additional information on the administrative and legal actions undertaken by the Department of Industrial Relations to expedite the recognition process and to take any necessary measures to further reduce the length of proceedings. The Committee notes the Government’s indication that the amendments to the IRA confer the powers to determine the matters related to the recognition of trade unions previously vested in the Minister of Human Resources to the Director-General of Industrial Relations, thus expediting the dispute resolution processes relating to claims for recognition by trade unions. Welcoming these amendments, the Committee requests the Government to indicate the effect they have on the recognition procedure, in particular to indicate the average duration of the process, both for voluntary recognition and for instances where recognition is determined by the Director-General. Further observing that section 9(6) of the IRA providing for the final nature of the decision on recognition by the Director-General has been deleted, the Committee requests the Government to indicate whether such decision may now be appealed by the concerned union or the employer.

Migrant workers. In its previous comment, the Committee welcomed the Government’s statement that current laws do not prohibit foreign workers from becoming trade union members but observed that the Government did not provide any information on the announced legislative amendment to enable non-citizens to run for election for union office if they have been legally residing in the country for at least three years or in response to a series of concerns that had been previously noted by the Committee. The Committee regrets that the Government’s report is limited to reiterating that foreign workers are eligible to becoming members of a trade union and to hold trade union office upon approval of the Minister, if it is in the interest of such union (a condition which, in the Committee’s views, hinders the right of trade union organizations to freely choose their representatives for collective bargaining purposes) and does not elaborate on any of the concerns previously raised on limitations on collective bargaining of migrant workers in practice. The amendments to the IRA also do not seem to address these issues. The Committee therefore reiterates its request to the Government to take the necessary measures to ensure the full utilization of collective bargaining by migrant workers, including as to enabling foreign workers to run for trade union office, and to provide information on any developments in this regard, whether legislative or other.

Scope of collective bargaining. In its previous comment, the Committee expressed firm hope that section 13(3) of the IRA would be amended in the near future to remove its broad restrictions on the scope of collective bargaining (restrictions with regard to transfer, dismissal and reinstatement, some of the matters known as “internal management prerogatives”). The Committee notes the Government’s indication that while section 13(3) was retained during the labour law reform, so as to maintain industrial harmony and speed up the collective bargaining process, the provision is not obligatory in that, if both parties agree, they may negotiate the subject matters stipulated therein. The Government adds that additional amendments were introduced to section 13(3) of the IRA, allowing trade unions to raise questions of a general character relating to transfers, termination of services due to redundancy, dismissal, reinstatement and assignment or allocation of work. While welcoming these amendments, the Committee considers that it remains unclear how the possibility to raise questions of a general character on matters that are within the scope of legislative restrictions on collective bargaining would be articulated in practice. The Committee therefore requests the Government to indicate the practical implications of the amendment of section 13(3) of the IRA on the scope of collective bargaining, in particular to clarify the meaning of the new wording – questions of a general character. While further noting the Government’s indication that the parties may, if they agree, negotiate the matters prohibited by section 13(3) of the IRA, the Committee invites the Government to consider lifting the broad legislative restrictions on the scope of collective bargaining, so as to promote the right to bargain freely between the parties, without any intervention by the Government.

Compulsory arbitration. In its previous comment, the Committee noted that section 26(2) of the IRA allows compulsory arbitration by the Minister of Labour of his own motion in case of failure of collective bargaining and expressed hope that the Government would take any necessary measures to ensure that the legislation only authorizes compulsory arbitration in essential services in the strict sense of the term, for public servants engaged in the administration of the State or in cases of acute national crisis. The Committee notes the Government’s statement that amendments have been made to section 26(2) of the IRA, enabling trade unions to engage freely and voluntarily in collective bargaining, except in certain situations, but that this provision is not yet enforced. The Committee observes, in particular, that pursuant to the new wording of section 26(2) of the IRA, the Minister may of his/her own motion refer any trade dispute to the court if satisfied that it is expedient to do so provided that where the trade dispute relates to a refusal to commence collective bargaining or a deadlock in collective bargaining, reference to the court shall not be made without the consent in writing of the parties, unless: (a) the trade dispute relates to the first collective agreement; (b) the trade dispute refers to any essential services specified in the First Schedule; (c) the trade dispute would result in acute crisis if not resolved expeditiously; or (d) the parties to the trade dispute are not acting in good faith to resolve the trade dispute expeditiously. The Committee notes with interest that the amendments made restrict compulsory arbitration to instances generally compatible with the Convention, except to the extent that the reference in section 26(2) to “any Government service” and “the service of any statutory authority”, as well as the reference to a number of Government services in point 8 of the First Schedule, may go beyond what can be considered as public servants engaged in the administration of the State, and point 10 of the First Schedule, which considers as essential services businesses and industries connected with the defence and security of the country (while the armed forces may be exempt from the provisions of the Convention, businesses and industries connected with them should be afforded the full guarantees of the Convention). In line with the above, the Committee trusts that these amendments will enter into force without delay and invites the Government to continue to engage with the social partners with a view to: (i) further delimiting the categories of Government services in section 26(2) and point 8 of the First Schedule, so as to ensure that compulsory arbitration may only be imposed on those public servants engaged in the administration of the State; and (ii) removing businesses and industries mentioned in point 10 of the First Schedule from its the scope of application.

Restrictions on collective bargaining in the public sector. The Committee has for many years requested the Government to take the necessary measures to ensure for public servants not engaged in the administration of the State the right to bargain collectively over wages and remuneration and other working conditions and emphasized that simple consultations with unions of public servants not engaged in the administration of the State did not meet the requirements of Article 4 of the Convention. The Committee notes that the Government, on the one hand, asserts that it has taken the necessary measures to ensure that public officers are given fair opportunities to collectively bargain over wages and remuneration and other working conditions, in conformity with Article 4 of the Convention, subject to the applicable laws and regulations governing the employment of civil servants, and on the other hand, reiterates that collective bargaining is done through the National Joint Council and the Departmental Joint Council, as stipulated in Service Circular No. 6/2020 and Service Circular No. 7/2020, or through direct engagement with the Government. While taking due note of the above, the Committee observes that the Government does not provide any details as to the content of the Circulars or the measures it indicates it has taken to ensure that public officers are given fair opportunities to collectively bargain, that section 52 of the IRA explicitly excludes workers employed by the Government or any statutory authority from the collective bargaining machinery of the Act and that it, therefore, remains unclear what precise substantial changes were made to the existing regime of collective bargaining in the public sector. In line with the above, the Committee requests the Government to provide further information in this respect, in particular to: (i) indicate the concrete changes made to the existing regime of collective bargaining in the public sector; (ii) to specify the content of Service Circular No. 6/2020 and Service Circular No. 7/2020 or any other applicable legal provisions, which, according to the Government, ensure that public servants can bargain collectively in conformity with Article 4 of the Convention; and (iii) provide information on collective bargaining undertaken in the public sector and any agreements concluded.

Collective bargaining in practice. In its previous comment, the Committee requested the Government to provide statistical information in relation to collective bargaining in the country. The Committee notes that the Government refers to statistical information by the Industrial Court but observes that no such information has been provided. It further notes that the Government points to additional measures taken to promote the full development and utilization of collective bargaining under the Convention, including engagement sessions with the social partners during the process of legislative amendments and industrial visits conducted to workplaces to promote industrial harmony. The Committee notes, however, the concerns expressed by the MTUC as to the low percentage of workers covered by collective agreements (1 to 2 per cent) and the declining level of trade union density (6 per cent). The Committee encourages the Government to continue to provide statistical information on the number of collective agreements concluded and in force, the sectors concerned and the number of workers covered by these agreements, as well as on any additional measures undertaken to promote the full development and utilization of collective bargaining under the Convention.

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

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination of public servants not engaged in the administration of the State. The Committee observes that section 52 of the Industrial Relations Act (IRA) excludes any Government service or any service of any statutory authority or any workman employed by Government or by any statutory authority from the application of Parts II to VI of the IRA, including on protection against acts of anti-union discrimination. The Committee observes, however, that as a result of the current labour law review, section 52(3) was added to the IRA which stipulates that the application of Part VI (representations for unfair dismissal) shall be extended to any service of or any worker employed by a statutory authority, in which the Minister, after consultation with such authority, prescribes such application by an order in the Gazette. While taking due note of this amendment and of the potential extension of the scope of unfair dismissal claims to certain public servants, the Committee understands that the general exclusion of workers employed by the Government or any statutory authority from the protection against acts of anti-union discrimination under the IRA remains in place and the possibility for these workers to challenge unfair dismissals, including for anti-union reasons, is dependent on the Minister’s prior determination of the statutory authorities concerned. In line with the above, the Committee requests the Government to indicate the statutory services to which the Minister extended the application of Part VI of the IRA and to provide information on its application in practice relating to public servants not engaged in the administration of the State. In view of the exclusion contained in section 52 of the IRA, the Committee further requests the Government to indicate the applicable legislative provisions which provide protection against acts of anti-union discrimination of public servants not engaged in the administration of the State, in compliance with the Convention.

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on occupational safety and health (OSH), the Committee considers it appropriate to examine Conventions Nos 119 (guarding of machinery) and 187 (promotional framework for OSH) together.

A. General provisions

Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187)

Articles 2(1) and 5(1) of the Convention. Formulation, implementation, monitoring, evaluation and periodical review of a national programme and policy on OSH, in consultation with the social partners. Following its previous requests, the Committee notes the Government’s information on the progress achieved with regard to the goals of the Occupational Safety and Health Master Plans for Malaysia (OSHMP) for 2009 – 2015 and 2015 - 2020, in particular concerning the reduction in the rate of work-related fatalities and of occupational injuries. The Committee further notes that the OSHMP 2021 – 2025 was adopted in October 2021. The Government also indicates that tripartite consultations were held in developing laws and regulations, as well as programmes and policies on OSH, including the OSHMP. The Committee also notes the Government’s indication that the OSH Act of 1994 is under revision and that social partners are consulted through the National Council for OSH. The Committee requests the Government to provide information on the implementation of the OSHMP 2021 – 2025, including the activities carried out and the results achieved within its framework. It also requests the Government to provide information on the measures taken, in consultation with the social partners, with a view to formulating the OSHMP for the next period. Furthermore, the Committee requests the Government to provide information on the progress made in the revision of the OSH Act, and to transmit a copy of the new legislation, once adopted.

Article 2(2) and (3). Measures that could be taken to ratify the relevant OSH Conventions of the ILO. Following its previous comments, the Committee notes the Government’s indication in its report that it continues to comply with international labour standards on OSH and that the existing legal framework adheres to the relevant ILO instruments. The Government also indicates that once the revision of the OSH Act is completed, it will consider ratifying the Occupational Safety and Health Convention, 1981 (No. 155). The Committee requests the Government to provide further information on its plans concerning the ratification of Convention No. 155, once the revision of the OSH Act is completed, including with regard to consultations with the social partners on the matter.

Article 4(2)(d). Arrangements to promote, at the level of the undertaking, cooperation between management, workers and their representatives. The Committee previously noted that, pursuant to section 30(1) of the OSH Act, employers shall establish a safety and health committee at the place of work if they employ 40 or more persons. It requested the Government to provide further information on the arrangements to promote cooperation between management, workers and their representatives in enterprises of less than 40 employees. The Government indicates in its report that, in practice, an OSH representative shall be appointed in enterprises of less than 40 employees. Responsibilities of the OSH representative include reporting the OSH status of the concerned enterprise to the Department of Occupational Safety and Health (DOSH), administrating OSH documents, promoting an OSH culture and taking related actions. To date, there are 1,036 OSH representatives registered with the DOSH. There are also 20 approved training centres providing training programmes to OSH representatives. The Government also states that the on-going amendments to the OSH Act provide for the obligation to appoint an OSH representative in enterprises of less than 40 employees. The Committee requests the Government to continue to provide information on the measures adopted, in the context of the revision of the OSH Act, to ensure arrangements to promote, at the level of the undertaking, cooperation between management, workers and their representatives as an essential element of workplace-related prevention measures.

Article 4(3)(g). Collaboration with relevant insurance and social security schemes for occupational injuries and diseases. The Committee previously requested the Government to provide information on collaboration between the DOSH and the Social Security Organization (SOCSO) in their efforts to collect data on occupational accidents and diseases in the country. The Government indicates that a national accident directory is developed through data sharing between the DOSH and the SOCSO, which is also made public by media dissemination. The Government also states that it is planning to develop a single platform for reporting of occupational accidents. The Committee requests the Government to continue providing information on the development of the single platform for the reporting of occupational accidents. It also requests the Government to provide relevant information regarding the cooperation between the DOSH and the SOCSO on data collection regarding occupational diseases.

B. Protection against specific risks

Guarding of Machinery Convention, 1963 (No. 119)

Article 15 of the Convention. Appropriate inspection to supervise the application of the Convention. The Committee previously noted that, according to observations from the Malaysia Employers Federation, the inspection of machinery at an interval of every 15 months had put pressure on DOSH inspectors. The Committee also noted that, in 2012, 24 per cent of the posts for factory and machinery inspectors were vacant (126 of the 518 posts). In reply to its previous comment, the Government indicates that, as at August 2021, there were 1,224 factories and machinery inspectors and that 70 posts were vacant (6.5 per cent). The Government also refers to the Factories and Machinery (Special Inspection Scheme) (Risk-Based Inspection) Regulations adopted in 2014. According to Part II (sections 4–10), for pressurized machinery, the owner may apply for a risk-based inspection scheme. As proved by the DOSH after initial audit and inspection, inspections are carried out at an interval not exceeding 75 months, based on the category of risk associated with the concerned machinery, instead of the interval of 15 months required by section 19(1) of the Factories and Machinery Act 1967. The special inspection scheme may be renewed upon satisfactory results of the following inspections (Part VI, sections 23 – 28). Ad-hoc inspections and audits may also be carried out in the context of the risk-based inspection scheme as an inspector may deem necessary (Part IX, sections 43 and 44). The Government further indicates its intention to privatize regular inspection of certificated machinery to third party inspectors and establish a Regulatory Division to monitor the compliance of the appointed private inspectors with related legislation. This changes will be institutionalized thorough an amendments to the Factories and Machinery Act 1967. The Committee requests the Government to provide further information on the envisaged privatization of machinery inspection, including the procedures and criteria of the accreditation of third party inspectors, specific activities that they may perform, their interaction with inspectors of the DOSH and detailed functions of the Regulatory Division to monitor their compliance. It also requests the Government to indicate the measures taken in order to monitor and avoid possible conflicts of interest with respect to third party inspectors and the employers they inspect. Additionally, the Committee requests the Government to provide detailed information on the implementation of the risk-based inspection scheme established by the Factories and Machinery Regulations of 2014, including the number of enterprises covered by this scheme, the average duration of the scheme, the number of granted schemes revoked due to failure of compliance, and the violations detected during the initial, renewal and ad-hoc inspections. The Committee also requests the Government to provide a copy of the draft amendments to the Factories and Machinery Act 1967 in this regard.

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

Articles 2 and 5(1)(a)–(e). Effective tripartite consultations. Impact of the COVID-19 pandemic. In its previous comments, the Committee requested the Government to provide information on tripartite consultations held on matters relating to international labour standards set out in Article 5(1) of the Convention. The Committee further invited the Government to provide information on the outcome of consultations held with the social partners concerning the possibility of ratification of Conventions Nos 155 and 169. The Government was also invited to provide information on measures taken, in light of the COVID-19 pandemic to guarantee and reinforce the continuation of tripartite consultation and social dialogue. The Government indicates that the physical meetings and engagements of the tripartite National Labour Advisory Council (NLAC) were not permitted, due to the safety measures to curtail the spread of the COVID-19 pandemic. It nevertheless, engaged with employers and workers on a continuous basis through online platforms to discuss labour-related issues. With regard to the possibility of ratification of Convention No. 155, the Committee notes that the Government is in the process of amending the national legislation to bring it into compliance with the requirements on the Convention. Tripartite consultations have been held in the National OSH Council on the amendment process. The Government indicates that the possibility of ratifying Convention No. 169 is currently in the process of inter-ministerial consultations and the outcome has yet to be determined. The Committee requests the Government to provide updated detailed information on the content, frequency and outcome of the tripartite consultations held during the reporting period on all matters concerning international labour standards covered by Article 5 of the Convention. The Government is also requested to keep the office informed of the outcome of consultations held on the possible ratification of Conventions Nos 155 and 169.

The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014, 2016 and 2018 entered into force for the Republic of Malaysia on 18 January 2017, 8 January 2019 and 26 December 2020, respectively. Based on its second review of the information and documents available, the Committee draws the Government’s attention to the following issues.

Impact of the COVID-19 pandemic. The Committee takes note of the observations of the International Transport Workers' Federation (ITF) and of the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and on 4 October 2021, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with deep concern the impact of the COVID-19 pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and to its comments on the General Report of 2021 on this issue, and requests the Government to provide information in its next report on any temporary measures adopted in this regard, their duration and their impact on seafarers’ rights.

Article II, paragraphs 1(f) and 2. Definitions and scope of application. Seafarers. In its previous comment, the Committee requested the Government to provide further information on the list of categories of persons not to be regarded as seafarers under section 2 of the Merchant Shipping Ordinance, 1952, as amended by the Merchant Shipping Ordinance (Amendment) Act 2016, and paragraph 7 of the Malaysian Shipping Notice, NPM 07/2013. The Committee notes the Government’s indication that (1) the definition of the term “seafarer” under the Merchant Shipping Ordinance has undergone consultations with seafarers’ and shipowners’ organizations; (2) the term “seafarer” includes almost every personnel on board under the requirements of the MLC, 2006, especially “general workers, entertainers, housekeepers, or medical staffs such as on cruise ships”; and (3) offshore personnel is covered under the existing offshore labour regulations such as the Employment Act 1955 (Act 265), the Occupational Safety and Health Act 1994 (Act 514) and Industrial Personnel Code of Practices. While noting this information, the Committee observes that under section 2 of the Merchant Shipping Ordinance, as amended, the following categories, inter alia, are excluded from the definition of seafarer: (a) a person not directly employed for the normal manning of the ship within the deck, engine or catering department; e) any person whose work is not part of the routine business of the ship; h) non-marine personnel, employed under outsourced service agreement. The Committee notes that these exclusions, as currently drafted, are not in conformity with the Convention as they refer to persons who are employed, engaged or work in any capacity on board a ship to which the Convention applies. The Committee accordingly requests the Government to take the necessary measures to ensure that these categories of persons are considered seafarers for the purpose of the Convention. The Committee further requests the Government to indicate whether any additional determinations have been made pursuant to section 5 of NPM 07/2013, including information on the consultations held with the relevant social partners.

Article III. Fundamental rights and principles. In its previous comment, noting that Malaysia has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee requested the Government to indicate how it has satisfied itself that its laws and practice respect the fundamental rights to freedom of association, in particular as regards seafarers’ rights. The Committee notes the Government’s indication that paragraph 42 of MSN 7/2013 via Appendix 2 of the Guidelines of Seafarer Employment Contract stipulates that seafarers are free to join any associations without any restrictions from shipowners and from the Government through the Maritime Department of Malaysia (MARDEP). The Committee takes note of this information.

Article VI, paragraphs 3 and 4. Substantial equivalence. In its previous comments, the Committee requested the Government to provide information with respect to the adoption of substantial equivalences. The Committee notes the Government’s information that, as indicated in the Declaration of Maritime Labour Compliance (DMLC), Part I, no substantial equivalence has been granted. The Committee takes note of this information and requests the Government to inform on any developments in the future regarding the adoption of substantial equivalence measures.

Article VII. Consultations with shipowners’ and seafarers’ organizations. In its previous comments, the Committee requested the Government to indicate whether under various provisions of the Convention, determinations were made after consultations with shipowners’ and seafarers’ organizations. The Committee notes the Government's indication that MARDEP has organized various consultation sessions with shipowners’ and seafarers’ organizations, as a form of predetermination program before promulgating any ad hoc or new requirements concerning seafarers in Malaysia. The Committee takes note of this information.

Regulation 1.1 and Standard A1.1, paragraph 1. Minimum age. In its previous comments, the Committee requested the Government to indicate the steps taken to give full effect to Standard A1.1, paragraph 1. The Committee notes the Government’s reference to section 73 of the Merchant Shipping Ordinance, as amended, which provides that the minimum age for employment of seafarer on board any Malaysian ship is sixteen years. The Committee notes that this is further confirmed by the requirements reflected in the DMLC, Part I. The Committee takes note of this information, which addresses its previous request.

Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. In its previous comment, the Committee noted that section 73(2)(b) of the Merchant Shipping Ordinance, as amended, states that the Director of Marine may exempt seafarers between 16 and 18 from the prohibition of hazardous work when they undergo an approved training programme on board ship subject to any condition that may be determined by the Director of Marine and requested the Government to amend its legislation to give full effect to Standard A1.1, paragraph 4. The Committee notes the Government’s indication that a new legislation will be drafted to give full effect to the requirements of the Convention. The Committee requests the Government to provide information on any progress achieved in this regard and to provide a copy of any new text once adopted. The Committee further requested the Government to provide information on the relevant legislation establishing the list of types of hazardous work prohibited to seafarers under the age of 18. The Committee notes in this regard that the Government refers to the list of types of hazardous work mentioned in the DMLC, Part I annexed to NPM 09/2016. The Committee requests the Government to indicate whether such list was adopted after consultation with the shipowners’ and seafarers’ organizations.

Regulation 1.2 and Standard A1.2, paragraph 5. Medical certificate and right of appeal. In its previous comment, the Committee requested the Government to indicate the measures taken to amend the Merchant Shipping (Medical Examination) Rules 1999 and the Medical and Eyesight Standard (Rules) Rules in order to fully implement Standard A1.2, paragraph 5, in particular by ensuring the right of appeal also for new entrant seafarers in their first examination. In its reply, the Government indicates that these Rules are being amended. The Committee requests the Government to provide information on any progress in this regard to provide a copy of any relevant text as soon as adopted.

Regulation 1.4 and the Code. Recruitment and placement. In its previous comments, the Committee requested the Government to provide information on the system of licensing for agencies dealing with the recruitment and placement of seafarers pursuant to Standard A1.4, paragraph 5. The Committee notes the information provided by Government in this respect. The Committee also notes that section 121 of the Merchant Shipping Ordinance, as amended, regulates the issuance of a licence to private employment agencies supplying seafarers to serve on board ships, but does not give effect to the requirements of Standard A1.4, paragraph 5. The Committee requests the Government to take the necessary measures to give effect to the detailed requirements of Standard A1.4, paragraph 5.

Regulation 2.4 and Standard A2.4, paragraph 3. Entitlement to leave. In its previous comment, the Committee noted that section 91(3) of the Merchant Shipping Ordinance, as amended, allows agreements to forgo the minimum annual leave with pay in cases determined by the Director of Marine. It requested the Government to provide information on any specific exceptions provided for by the Director of Marine in application of this provision. In its reply, the Government indicates that, according to seafarers’ and shipoweners’ organizations, no official complaints have been recorded for this matter. The Government further indicates that no specific exception has been authorized by the Director of Marine with regard to annual leave. The Committee requests the Government to provide information on any eventual exceptions authorized pursuant to section 91(3) of the Merchant Shipping Ordinance, as amended.

Regulation 2.1 and Regulation 2.2 and Standard A2.1, paragraph 7 and Standard A2.2, paragraph 7. Seafarers’ employment agreements and wages. Captivity as a result of acts of piracy or armed robbery against ships. In relation to the 2018 amendments to the Code, the Committee draws the Government’s attention to the following questions included in the revised report form for the Convention: (a) do laws or regulations provide that a seafarer’s employment agreement shall continue to have effect while the seafarer is held captive on or off the ship as a result of acts of piracy or armed robbery against ships?; (b) how are the terms piracy and armed robbery against ships defined under national legislation? (Standard A2.1, paragraph 7); and (c) do laws or regulations provide that wages and other entitlements under the seafarers’ employment agreement, relevant collective bargaining agreement or applicable national laws, including the remittance of any allotments, shall continue to be paid during the entire period of captivity and until the seafarer is released and duly repatriated or, where the seafarer dies while in captivity, until the date of death in accordance with national legislation? (Standard A2.2, paragraph 7). The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions.

Regulation 2.5 and Standard A2.5.1. Repatriation. In its previous comments, the Committee noted that seafarers on board a Malaysian ship shall be entitled to repatriation at no cost in accordance with section 92(1) of the Merchant Shipping Ordinance, as amended. However, it noted that the Government did not provide information on the conditions for the existence of the right to repatriation, including the maximum period of service on board a ship, or on the entitlements to be accorded by shipowners for the repatriation of seafarers. Noting that the Government provides no information in this regard, the Committee requests the Government once again how it implements the requirements of Standard A2.5.1, paragraphs 1 and 2.

Referring to sections 87(1)(a) and 92(2) of the Merchant Shipping Ordinance, as amended, the Committee also requested the Government to provide information on the grounds and procedures by which a seafarer can be found to be in serious default. In its reply, the Government refers to section 114 of the Merchant Shipping Ordinance, as amended and to the Crew Contract of Agreement which contains the list of potential disciplinary defaults by a seafarer. The Committee takes note of this information.

Regulation 2.5 and Standard A2.5.2. Financial security in the event of abandonment. In its previous comments, the Committee requested the Government to reply to specific questions on the implementation of these provisions of the Convention. The Committee notes the Government's indication that NPM 8/2016 reproduces the 2014 amendments to the Code of the Convention. It is addressed to shipowners, shipping agencies, Recognized Organizations (ROs) and Seafarer Organizations. It also notes the copy of the London P&I Club insurance. It further notes that NPM 09/2016 provides information on the content of the 2014 amendments and applies to all Malaysian ships ordinarily engaged in commercial activities wherever they are, to all other ships ordinarily engaged in commercial activities while they are in Malaysian waters, and to all seafarers serving on board such ships. The Committee takes note of this information.

Regulation 2.7 and the Code. Manning levels. Food and catering. In its previous comments, the Committee requested the Government to provide information on how the requirements on food and catering have been taken into account when determining manning levels. The Committee notes the information submitted by the Government in this regard which addresses its previous request.

Regulation 3.1 and the Code. Accommodation and recreational facilities. In its previous comment, the Committee requested the Government to provide information on the national provisions implementing Regulation 3.1 and Standard A3.1. The Committee notes the Government’s indication that the MARDEP is preparing a draft amendment of section 131 of the Merchant Shipping Ordinance, as amended concerning ship’s accommodation. In this regard, the Committee recalls that Standard A3.1 calls on Members to adopt laws and regulations requiring that ships that fly its flag: (a) meet the minimum standards for accommodation and recreational facilities set out in Standard A3.1, paragraphs 6-17; and (b) are inspected in conformity with Standard A3.1, paragraph 18, to ensure initial and ongoing compliance with those standards. The Committee requests the Government to indicate the measures adopted to give effect to Regulation 3.1 and Standard A3.1.

Regulation 3.2 and Standard A3.2, paragraph 2(b). Organization and equipment of the catering department. In its previous comments, the Committee noted that there was no relevant national legislation giving effect to this provision of the Convention. It requested the Government to indicate the measures taken or envisaged to comply with this requirement. In its reply, the Government indicates that MARDEP is in process of developing legislation to give effect to Standard A3.2, paragraph 2(b) of the Convention. The Committee hopes that the implementing national legislation will be adopted in the near future and requests the Government to provide copy of any new text once available.

Regulation 4.1 and the Code. Medical care on board and ashore. In its previous comment, the Committee requested the Government to provide information on the implementation of Regulation 4.1, paragraphs 2-3 and Standard A4.1, paragraph 1(c) and (d). The Committee notes that the Government refers to the sample employment contract annexed to the MSN 07/2013, which addresses its previous request.

The Committee also requested the Government to provide information on the implementation of the requirement of Standard A4.1, paragraph 4(d). The Committee notes the Government’s indication that MARDEP will collaborate with P&I BlueMed and the International Radio Medical Centre to extend their services to domestic ships and to companies that have restricted access to shore medical advice. The Committee requests the Government to indicate how it ensures that medical advice by radio or satellite communication is available 24 hours a day free of charge to all ships irrespective of the flag they fly, as required by Standard A4.1, paragraph 4(d). Noting the absence of information on this point in the Government’s report, the Committee reiterates its request to provide information on the application of Regulation 4.1, paragraph 3 (access to the Member’s medical facilities on shore).

Regulation 4.2, paragraph 1 and Standard A4.2.1. Shipowners’ liability. In its previous comments, the Committee requested the Government to indicate the measures adopted or envisaged to implement the requirements of Regulation 4.2 and Standard A4.2.1. The Committee notes that section 131(3) of the Merchant Shipping Ordinance, as amended, provides that the owner shall provide the following benefits to all seafarers engaged on a Malaysian ship: (a) medical care; (b) sickness benefit; and (c) employment injury benefit. It also notes the Government’s indication that the limitation of the shipowner’s liability to pay wages in whole or in part will be further stated in the Collective Bargaining Agreement via the upcoming agenda under the Tripartite Committee Meeting of Malaysia. The Committee requests the Government to indicate whether and how under section 131(3) of the Merchant Shipping Ordinance, as amended, the shipowner is liable to pay the costs and expenses provided for by Standard A4.2.1, paragraphs 1(a), (c) and (d). Recalling that any limitations to the shipowner’s liability pursuant to Standard A4.2.1, paragraphs 2 and 4 may only be established through laws or regulations, the Committee requests the Government to indicate any information in this regard.

Regulation 4.2 and Standard A4.2.1 and Standard A4.2.2. Shipowners’ liability. Financial security in the event of death or long-term disability. The Committee requested the Government to indicate the measures adopted or envisaged to implement the requirements of the amendments of 2014 to the Code of the Convention. The Committee notes the Government’s reference to NPM 09/2016 which refers to the requirements of the 2014 amendments and addresses its previous request.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. In its previous comment, the Committee requested the Government to provide information on the laws, regulations and other measures adopted to implement Standard A4.3. Noting the absence of information in the Government’s report on the measures adopted to implement this Standard, the Committee requests the Government to take the necessary measures to give effect to Regulation 4.3, paragraph 3 and Standard A4.3.

The Committee also requested the Government to provide details on the national provisions implementing Standard A4.3, paragraph 2(d). In its reply, the Government refers to the DMLC, Part I, stating that shipowners shall specify the authority of the ship’s seafarers appointed or elected safety representatives to participate in ship’ safety committee meetings. The Committee, however, observes that the DMLC, Part I annexed to NPM 09/2016 does not refer to the relevant national legal provisions. The Committee recalls that under Standard A4.3, paragraph 2(d), a ship’s safety committee shall be established on board a ship on which there are five or more seafarers. The Committee therefore requests the Government to indicate the laws, regulations and other measures giving effect to Standard A4.3, paragraph 2(d).

Regulation 4.5 and the Code. Social security. In its previous comment, the Committee requested the Government to provide information on the implementation of Regulation 4.5 and Standard A4.5. In its reply, the Government refers to section 108 of the Merchant Shipping Ordinance, as amended. The Committee recalls that under Standard A4.5, paragraph 3, each Member shall take steps to provide social security protection to all seafarers ordinarily resident in its territory, including those working on board ships flying a foreign flag. The resulting protection shall not be less favourable than that enjoyed by resident shoreworkers. This responsibility could be satisfied, for example, through appropriate bilateral or multilateral agreements or contribution-based systems. The Committee accordingly requests the Government to provide statistics on the number of seafarers resident in Malaysia who work on ships flying a foreign flag, as well as information on any bilateral or multilateral agreements covering social security of those seafarers.

The Committee also notes the Government’s statement that as for moving forward under Standard A4.5, paragraph 6, MARDEP is in the midst of exploring various benefits under section 131(2)(o) of the Merchant Shipping Ordinance, as amended. The Committee requests the Government to provide information on any development in this regard.

Regulation 5.1.2 and the Code. Flag State responsibilities. Authorization of recognized organizations. In its previous comment, the Committee requested the Government to provide information regarding the implementation of Standard A5.1.2, paragraph 4. The Committee notes that the Government provides the list of the authorized ROs as well as instructions for ROs (including reference to Maritime Labour Certificates) and a model for ROs’ and third parties’ surveyor audits. The Committee takes note of this information.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Declaration of Maritime Labour Compliance. In its previous comment, the Committee noted that the DMLC, Part I annexed to NPM 07/2013, did not contain the necessary reference to the national legal provisions. It requested the Government to amend it. In its reply, the Government indicates that the current DMLC, Part I will be amended accordingly following the latest amendments to the Code of the Convention of 2018. Noting that the DMLC, Part I, annexed to NPM 09/2016 still does not contain the necessary reference to the national legal provisions, the Committee hopes that the process of amending the DMLC, Part I will be completed in the very near future embodying the provisions of the Convention by providing a reference to the relevant national legal provisions in addition to the information on the main content of the national requirements. It requests the Government to provide a copy of the revised DMLC, Part I, as soon as it is available.

Regulation 5.1.4 and Standard A5.1.4. Inspection and enforcement. The Committee requested the Government to provide information on the measures adopted to give effect to Regulation 5.1.4 and Standard A5.1.4, as well as on the implementation of Standard A5.1.4, paragraph 7(c). In its reply, the Government indicates that section 131(e) of the Merchant Shipping Ordinance, as amended, is supported and supplemented by internal MARDEP guidelines and RO Instructions. The Government also indicates that the Accredited Quality Management System is used as a benchmark for inspectors’ skills and refers to internal MARDEP guidelines of auditor qualifications and to the model for ROs’ and third parties’ surveyor audits. The Committee takes note of this information.

[The Government is asked to reply in full to the present comments in 2024.]

Malaysia (ratification: 1974)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

Articles 1, 3 and 6 of the Convention. Contribution of the employment service to employment promotion. The Committee welcomes the information provided in the Government’s report on the application of the Convention. The Government reports that it provides a free public employment service through JobsMalaysia, an online system of the Ministry of Human Resources that aims to improve occupational mobilization and ensure the optimization of the workforce through systematic job-matching (Article 6). JobsMalaysia provides jobseekers with career counselling and information regarding job vacancies, as well as advertising vacancies notified by employers. It also holds regular job fairs and open interviews, as well as awareness-raising activities in collaboration with educational institutions and other government agencies, such as the Education Service Commission Malaysia and the Public Service Department, among others. The Government reports that, as of July 2019, there were 16 JobsMalaysia centres and 69 JobsMalaysia points of service have been established, with 146 staff throughout the country. During the period covered by the Government’s report, JobsMalaysia received 287,287 applications from jobseekers, notified 693,796 vacancies, and placed 49,789 persons in employment. The Committee notes that, in its supplementary report, the Government indicates that in response to the COVID-19 pandemic, the Ministry of Human Resources (MOHR) through the Social Security Organization (SOCSO) has introduced the website www.myfuturejobs.gov.my to allow unemployed persons to access the various job initiatives available. Other services include job placement, career counselling and Active Labour Market Programmes. In this regard, the Committee wishes to draw the Government’s attention to the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205), which provides guidelines for developing and implementing effective, consensus-based and inclusive responses to the profound socio-economic impacts of the pandemic. The Committee requests the Government to continue to provide detailed, up-to-date information regarding the nature, scope and impact of the activities conducted by JobsMalaysia, as well as on the manner in which the Government ensures the best possible organisation of the employment market. The Committee also requests the Government to continue to provide information on the various measures adopted to address and mitigate the negative impact of the COVID-19 pandemic on the labour market. The Government is further requested to continue to provide updated statistical data on the number of public employment offices established, the number of applications for employment received, the number of vacancies notified and the number of persons placed in employment by the offices, disaggregated by age and sex.

Articles 4 and 5. Participation of the social partners. The Government indicates that it conducts monthly programmes with the active involvement of the Malaysia Employers Federation and the Malaysian Trades Union Congress, such as graduate employability programmes, outreach programmes and programmes concerning job opportunities for groups in vulnerable situations. It adds that this process enables these organizations to provide their comments and suggestions aimed at further improving the operation and development of JobsMalaysia. The Committee recalls that Articles 4 and 5 of the Convention require that suitable arrangements be made through advisory committees for the co-operation of representatives of employers and workers in the organization and operation of the employment service and in the development of employment service policy. The Committee requests the Government to communicate further information regarding the manner in which it ensures co-operation and consultation with representatives of employers’ and workers’ organizations in the organisation and operation of the employment service as well as in the development of employment service policy. It further requests the Government to provide information on measures taken or envisaged to establish advisory committees at the national, regional and local levels as envisaged in Article 4(2) of the Convention.

Articles 7 and 8. Employment measures targeted to the needs of particular categories of applicants for employment. The Committee notes that the programmes conducted during the reporting period include programmes for persons belonging to disadvantaged groups. The Committee requests the Government to provide updated detailed information, including statistical data, disaggregated by sex and age, on the nature and impact of programmes or other measures taken or envisaged to meet the employment needs of particular categories of jobseekers, including young persons and persons with disabilities, as well as other groups that may encounter difficulties in entering or remaining in the labour market, including but not limited to women, older persons and long-term unemployed persons.

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

Article 2 of the Convention. Gender wage gap. In its previous comments, the Committee noted that while the labour force participation rate of women had increased, it remained low compared to that of men and the gender wage gap remained significant in certain industries and occupations. The Committee requested the Government to provide: (i) specific information on the impact that the measures taken, in the framework of the Eleventh Malaysia Plan 2016–20, to increase the labour force participation rate of women and their representation in decision-making positions in terms of reducing the gender wage gap in the various industries and occupations, particularly in those where it is high; (ii) information on any other measures taken or envisaged, in cooperation with workers’ and employers’ organizations, to this end; and (iii) up-to-date statistical data, disaggregated by sex, on the distribution of workers in the various industries and occupations, specifying their corresponding remuneration levels. In its report, the Government indicates that: (1) the impact of the measures taken can be seen from the results of the Labour Force Survey Report 2017 which show an increase of women’s participation in the labour force from 54.3 per cent in 2016 to 54.7 per cent in 2017. Further, the Salaries and Wages Report Survey 2017 noted a decrease in the overall gender wage gap (mean monthly salaries) from 7.6 per cent in 2016 to 6.2 per cent in 2017, and female employees recorded a higher growth in their monthly salary of 9.1 per cent compared to the monthly salary growth of 7.5 per cent for male employees; (2) it adopted the strategy B2 (Incoming female participation in the labour force) through the remaining period of the Eleventh Malaysia Plan which will focus on the following: (a) implementing flexible working arrangements by amending labour laws to allow the implementation of flexible working arrangements, subject to mutual agreement between employees and employers; (b) expanding minimum maternity entitlements by amending the Employment Act 1955 (EA 1955) to increase minimum maternity leave from 60 to 98 days in the private sector; and (c) regulation on childcare facilities will also be reviewed in order to better facilitate the establishment of childcare centres at workplaces or within the vicinity of workplaces; all government agencies are required to provide childcare facilities from January 2019; (d) to increase the role of women in leadership and policymaking, efforts will be continued to achieve the target of at least 30 per cent participation of women on the boards of directors of state owned enterprises (SOEs), statutory bodies and public listed companies by 2020; and (3) the review and amendments of the relevant labour laws being done through cooperation with employers and workers. The Department of Labour has several platforms of engagement including an online public engagement whereby all persons may provide views on the proposed amendments which will be taken into consideration by the Government. The Committee takes notes of all these initiatives and welcomes the slight increase in women’s participation in the labour force and reduction in the overall gender wage gap. It notes however that, according to the Labour Force Survey Report 2018, women’s participation in the labour force (80.7 per cent for men and 55.6 per cent for women) and the gender wage gap (6.2 per cent in 2017) remained significant between men and women. It notes further the concerns raised by the UN Committee on the Elimination of Discrimination Against Women (CEDAW) in its concluding observations, about the low representation of women in decision-making positions in the private sector despite their high educational and professional achievements and qualifications, as well as the persistent wage gap in most occupational categories (CEDAW/C/MYS/CO/3-5, 9 March 2018, paragraph 37). The Committee asks the Government to continue providing information on the effective impact of the measures adopted with a view to increasing the labour force participation rate of women and their representation in decision-making positions (in particular the implementation of the strategy B2 (Incoming female participation in the labour force) and the Eleventh Malaysia Plan 2016–20, and the amendment to the Employment Act 1955), in terms of reducing the gender wage gap in the various industries and occupations, both in the public and private sectors.

Minimum wages. In its previous comments, the Committee recalled that the principle of equal remuneration for work of equal value is to apply to domestic workers, whether nationals or non-nationals, and requested the Government to provide specific information on the manner in which it is ensured that in determining wages (including minimum wages) for domestic workers who are mostly women, their work is not being undervalued as compared to work done by predominately male groups. The Government recalls that the exclusion of domestic workers from minimum wage coverage is based on recommendations from the National Wages Consultative Council (NWCC), a tripartite body, which was established under the National Wages Consultative Council Act 2011 (Act 732) and that in 2018 the Minimum Wages Order (MWO) excluded domestic workers from its coverage, based on the NWCC. The Government explains that domestic workers are excluded from the MWO due to the informal nature of their employment as compared to those working in the formal sector. In addition, their accommodation cost (at the residence of the employer) and other costs, including food and other amenities are also borne by the employer. The Government indicates that the Ministry, through the NWCC will look into the observation of the ILO in this regard and will consider this matter in the forthcoming NWCC meetings. The Committee recalls that there is a possibility of indirect discrimination where female-dominated groups of workers are excluded from the application of minimum wage legislation, in particular those most vulnerable to wage discrimination such as domestic workers. Where certain categories of workers are excluded from general labour or employment law, it needs to be determined whether special laws or regulations apply to such groups, and whether they provide the same level of rights and protection as the general provisions (see 2012 General Survey on the fundamental Conventions, paragraphs 684, 742 and 745). The Committee notes that CEDAW in its 2018 concluding observations, expressed its “concern regarding the situation of women migrant domestic workers, who are denied equal rights under the State party’s labour laws vis-à-vis other migrant workers, including in relation to minimum wages, working hours, rest days, leave, freedom of association, and social security coverage. It is concerned that such lack of legal guarantees of their labour rights leaves women migrant domestic workers vulnerable to exploitation and abuse” (CEDAW/C/MYS/CO/3-5, 9 March 2018, paragraph 43). The Committee requests the Government to provide specific information on the manner in which it is ensured that in determining wages (including minimum wages) for domestic workers, including migrant workers, who are mostly women, their work is not being undervalued as compared to work done by predominately male groups and to keep it informed of the outcome of its deliberations with the NWCC on this matter.

Application of the principle in the public sector. As the Government’s report is silent on this point and recalling the Government’s obligation to ensure the full application of the principle of equal remuneration for men and women for work of equal value to its own employees, the Committee requests, once again, the Government: (i) to indicate how it is ensured that the criteria used to determine the classification of jobs and remuneration scales in the public sector are free from gender bias and that positions held predominantly by women are not undervalued in comparison with those held by men; (ii) to take the necessary steps to collect and analyse statistical information on the distribution of men and women in the various occupations and positions in the public sector and their corresponding remuneration levels; and (iii) to provide information on the measures taken to improve the access of women to higher ranking and better paid positions in the public sector, and the results achieved.

Article 3. Objective job evaluation. The Committee requested the Government to provide information on the adoption and implementation of the National Wage Index (NWI) in collaboration with employers’ and workers’ organizations. It also requested the Government to provide a copy of the NWI, once adopted, indicating also whether it would apply to both the public and private sectors. The Government indicates that the NWI has been formally launched on 19 February 2019. This index was developed as a guideline to measure the evolution in the salaries of workers in Malaysia and one of the key finding is that basic wages grew by 8.2 per cent over eight quarters from 2016 to 2018. Regarding the implementation of the NWI, the Government indicates that it is available online on the website of the Institute of Labour Market and Analysis (ILMIA) so that employers could use it as a guide for setting pay levels for salary adjustments and as input to their human resource policies, and employees and job seekers could benchmark changes in their wages to broader labour market trends and to assess their wage increase or changes over their career path. The Committee notes that the NWI was based on quarterly surveys on payroll information and adjustments between September 2016 and June 2018. It is a combined index of both the private and public sector wage and salary changes. The Committee welcomes the launch of the National Wage Index (NWI) and asks the Government to provide information on the findings of the NWI as regards the trends in women’s and men’s earnings by occupations and economic sectors, both in the private and public sector.

Article 4. Cooperation with the social partners. As the Government’s report is silent on this point and recalling the important role of the social partners in implementing the principle of the Convention, the Committee requests the Government to take the necessary measures to effectively cooperate with employers’ and workers’ organizations, within the National Labour Advisory Council or otherwise, with a view to giving effect in practice to the principle of equal remuneration for men and women for work of equal value. The Committee requests the Government to provide information on any specific measures taken in this respect, as well as on the results achieved.

Enforcement. The Committee requested the Government to provide information on the activities of the labour inspection services, as well as any other available information on the number, nature and outcome of cases regarding equal remuneration for men and women for work of equal value, in both the private and public sectors, dealt with by any competent authorities. It also requested the Government to provide specific information regarding awareness-raising activities conducted among workers, employers and their organizations, as well as labour inspectors, judges and other officials responsible for ensuring the implementation of the principle of the Convention, in practice. The Government indicates that it is currently reviewing and amending the Employment Act 1955 in order to include an anti-discriminatory provision, which will authorize the Government to inquire into any complaints regarding discriminatory treatments in workplaces relating to gender, race and religion. Until this process is completed, no specific legislation is available for enforcement relating to inequality based on gender. Hence, no cases regarding equal remuneration are handled by the Government. Recalling that monitoring and enforcement of equality and anti-discrimination laws and policies is an important aspect in determining if there is effective implementation of the Convention, the Committee requests the Government to provide information on the progress made towards the adoption of appropriate amendments to the Employment Act 1955. In the meantime, please provide information on any awareness-raising activities conducted among workers, employers and their organizations, as well as labour inspectors, judges and other officials responsible for ensuring the implementation of the principle of the Convention in practice.

Articles 1(a) and (b), and 2 of the Convention. Equal remuneration for work of equal value. Legislation. In its previous comment, the Committee noted the Government’s indication that the suitability of incorporating the principle of the Convention into its national legislation would be examined in the framework of the ongoing review of its labour legislation, and more particularly of the Employment Act, in reply to the Committee’s long-standing request. It also requested the Government to ensure that its national legislation allows for the comparison not only of the same jobs, but also of work of an entirely different nature which is nevertheless of equal value, taking into account that equality must extend to all elements of remuneration as indicated in Article 1(a) of the Convention and to provide information regarding the progress made in this regard and consider forwarding a copy of the draft legislation to the Office for its review. The Government indicates in its report that the Ministry has incorporated anti-discriminatory provisions in the proposed amendments to the Employment Act 1955 which would include the protection against unequal remuneration for men and women. The Act is undergoing a holistic review on all its provision and it is expected to be tabled by the end of 2019. The Committee notes that the UN Committee on the Elimination of Discrimination Against Women (CEDAW) in its concluding observations in 2018, recommended that Malaysia reduce the existing gender wage gap by regularly reviewing wages in sectors in which women are concentrated, and establishing effective monitoring and regulatory mechanisms for employment and recruitment practices to ensure that the principle of equal pay for work of equal value is guaranteed in national legislation and adhered to in all sectors (CEDAW/C/MYS/CO/3-5, 9 March 2018, paragraph. 38(c)). The Committee reiterates the importance of ensuring that the amendment of the Employment Act 1955 will expressly incorporate the principle of equal remuneration for men and women for work of equal value into its national legislation and allow for the comparison not only of the same jobs, but also of work of an entirely different nature which is nevertheless of equal value, taking into account that equality must extend to all elements of remuneration as indicated in Article 1(a) of the Convention. In this regard, it reiterates its request that the Government consider forwarding a copy of the draft legislation to the Office for its review.

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

Comments adopted by the CEACR: Malaysia

Adopted by the CEACR in 2021

C081 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C081 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C098 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C098 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C119 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

A. General provisions

Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187)

B. Protection against specific risks

Guarding of Machinery Convention, 1963 (No. 119)

C131 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2021, published 110th ILC session (2022)

C144 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

MLC, 2006 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Adopted by the CEACR in 2020

C088 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C095 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2020, published 109th ILC session (2021)

Adopted by the CEACR in 2019

C100 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C100 - Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Comments adopted by the CEACR: Malaysia

Display the list by:

Adopted by the CEACR in 2021

C081 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C081 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C098 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C098 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C119 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

A. General provisions

Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187)

B. Protection against specific risks

Guarding of Machinery Convention, 1963 (No. 119)

C131 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2021, published 110th ILC session (2022)

C144 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

MLC, 2006 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Adopted by the CEACR in 2020

C088 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C095 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2020, published 109th ILC session (2021)

Adopted by the CEACR in 2019

C100 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C100 - Observation (CEACR) - adopted 2019, published 109th ILC session (2021)