Observación (CEACR) - Adopción: 2016, Publicación: 106ª reunión CIT (2017)

Convenio sobre el trabajo forzoso, 1930 (núm. 29) - Malasia (Ratificación : 1957)
Protocolo de 2014 relativo al Convenio sobre el trabajo forzoso, 1930 - Malasia (Ratificación : 2022)

Articles 1(1), 2(1) and 25 of the Convention. 1. Vulnerable situation of migrant workers with regard to the exaction of forced labour, including trafficking in persons. The Committee previously noted the observations submitted by the International Trade Union Confederation (ITUC) in 2013, concerning the situation and treatment of migrant workers in the country which exposes them to abuse and forced labour practices, including: working for long hours; underpayment or late payment of wages; false documentation or contract substitution on arrival; and retention of passports by the employers (an estimated 90 per cent of employers allegedly retain the passports of migrant workers). In this regard, the Committee noted the Government’s indication in its report as well as during the discussion in June 2014 of the Committee on the Application of Standards, regarding certain measures taken to protect migrant workers, such as the establishment of a Special Enforcement Team (SET) to enhance enforcement activities to combat forced labour issues; conducting nationwide awareness raising on the Minimum Wages Order of 2012 in order to prevent labour exploitation of migrants; signing of Memoranda of Understanding (MoU) with eight countries of origin (Bangladesh, China, India, Indonesia, Pakistan, Sri Lanka, Thailand and Viet Nam) in order to regulate the recruitment of migrant workers; and signing of a separate MoU on the recruitment and placement of domestic workers with the Government of Indonesia. The Committee requested the Government to continue to take measures to ensure that migrant workers, including migrant domestic workers, are fully protected from abusive practices and conditions that amount to forced labour.

The Committee notes the Government’s information, in its report, regarding the measures taken by the Department of Labour to protect migrant workers including, the establishment of a mechanism of recruitment of foreign workers on a government to government (G to G) basis in order to prevent human trafficking and other forced labour practices. The Government states that the G to G mechanism of recruitment of foreign workers will not involve agents, third parties, middle men, private employment agencies or other recruitment agents of both countries, but shall be conducted through the departments appointed by the two countries. The Committee further notes the Government’s information that it has signed a G to G MoU with the Government of Bangladesh. Moreover, the Government also introduced a standard bilingual Contract of Employment for all foreign workers as well as a Standard Operating Procedure which requires the employers to pay wages to workers through their bank account and to obtain insurance coverage for foreign workers. The Government also indicates that the SET conducts routine inspections and investigates complaints related to forced labour. According to the data provided by the Government, from 2012 to 2015, the SET carried out 57 investigations related to forced labour concerning 181 victims, and in six cases, penalties of fines ranging from 6,000 to 120,000 Malaysian ringgit (MYR) (MYR1 equivalent to US$0.26) were imposed on the convicted persons.

The Committee notes that according to the Report of the United Nations Special Rapporteur on trafficking in persons, especially women and children of 15 June 2015 (report of the Special Rapporteur on trafficking in persons), workers, including domestic workers, are recruited through fraud and deception about the type and conditions of employment by recruitment agents in Malaysia and in source countries. Most commonly they are exploited through breaches of contract, payment of excessive recruitment and immigration fees, reduction or non-payment of salary, excessive working hours, a lack of rest days and conditions akin to debt bondage and servitude. In some cases, foreign workers’ vulnerability to exploitation is heightened when employers neglect to obtain proper documentation for workers or employ workers in sectors other than those for which they were granted an employment visa. Moreover practices of employers withholding passports are reportedly common. This report further states that irregular migrants wanting to report abuse, risk exposing themselves to the real danger of being charged for the offence of “irregular entry or stay” and are detained and ultimately deported (A/HRC/29/38/Add.1, paragraphs 10, 11, 12 and 25).

The Committee further notes from the report of the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea of 8 September 2015 (A/70/362) that nationals of the Democratic People’s Republic of Korea, sent abroad by their Government to countries such as Malaysia, work under conditions that reportedly amount to forced labour. These workers who work mainly in the mining, logging, textile and construction industries are forced to work sometimes up to 20 hours per day with one or two rest days per month and without adequate food, health and safety measures; their freedom of movement is restricted and they are forbidden from returning to their country during their assignment; and their passports are confiscated by the security agents and they are threatened with repatriation if they do not perform well or commit infractions. According to this report, the host countries never monitor the working conditions of overseas workers (paragraphs 24, 26, 27 and 28). While taking note of the measures taken by the Government to protect migrant workers, the Committee notes with deep concern the continued abusive practices and working conditions of migrant workers that may amount to forced labour, such as passport confiscation by employers, high recruitment fees, wage arrears and the problem of contract substitution. The Committee therefore urges the Government to strengthen the measures to ensure that migrant workers, including migrant domestic workers, are fully protected from abusive practices and conditions that amount to forced labour. It requests the Government to provide information on the measures taken in this regard, including information on the implementation of the Government to Government mechanisms for recruiting foreign workers as well as on other bilateral agreements signed with countries of origin. The Committee also requests the Government to provide copies of the bilateral agreements. The Committee further requests the Government to continue to provide information on the activities undertaken by the Special Enforcement Team to combat forced labour and the results achieved.

2. Trafficking in persons. In its previous comments, the Committee noted that during the discussions on the application of the Convention at the Conference Committee in June 2014, the Government reaffirmed its commitment to addressing trafficking in persons and provided information on various measures taken to this end, including measures to strengthen the capacity of law enforcement personnel and awareness-raising initiatives, as well as measures to better protect victims of trafficking. However, the Committee noted that, while the various steps taken by the Government were acknowledged by the members of the Conference Committee, delegates stressed that further measures were necessary in order to develop and implement effective action that is commensurate with the magnitude of the trafficking phenomenon.

The Committee notes the information provided by the Government in its report under the Worst Forms of Child Labour Convention, 1999 (No. 182), that it has elaborated the National Action Plan to Combat Trafficking in Persons 2016–20. This report also indicates that the Government of Malaysia has concluded an MoU with the Government of Thailand in combating trafficking in persons which particularly focuses on protection of victims of trafficking, law enforcement cooperation and the repatriation process. Moreover, it notes from this report that from 2012 to 2015, 746 persons were arrested in 550 cases related to trafficking in persons, involving 1,138 victims.

The Committee further notes the following information contained in the UN Report of the Special Rapporteur on trafficking in persons, regarding the measures taken by the Government to combat trafficking in persons:

• -5,126 awareness-raising campaigns on issues related to trafficking in persons were launched;
• -28 deputy public prosecutors who are specialized in dealing with cases of trafficking in persons were appointed within the Attorney General’s Chambers;
• -a directive to investigate all cases of trafficking involving foreign nationals under the Anti-Trafficking Act of 2007 as amended in 2010 and renamed as the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act (Anti-Trafficking Act) was issued; and
• -a government policy allowing victims of labour trafficking to remain and work legally in Malaysia was adopted in 2014.

Moreover, the statistical data contained in this report indicates that: (i) from 2008 to 2014, 509 cases of trafficking for sexual exploitation and 291 cases of trafficking for forced labour were identified by the Royal Police; (ii) in 2014, two cases of trafficking were identified and investigated by special labour inspectors; (iii) in 2014, six integrated operations to rescue victims of trafficking were conducted jointly by the police, customs, maritime enforcement, immigration and labour officers; and (iv) 1,684 individuals who were rescued were granted interim protection orders and placed in a shelter.

The Committee also notes from the Report of the Special Rapporteur on trafficking in persons that:

• -Malaysia faces challenges as a destination and, to a lesser extent, a transit and source country for men, women, girls and boys subjected to trafficking in persons. Fishermen, mainly from Cambodia and Myanmar are trafficked for bonded labour to work on Thai fishing boats in Malaysian waters as well as in palm oil plantations; a large number of women are trafficked into domestic servitude by employment agencies in their home country or in Malaysia or employers in Malaysia with the alleged complicity of State officials; a high number of women are trafficked into the sex industry; a significant number of refugees, asylum seekers and stateless persons, particularly from the Filipino and Indonesian communities in Sabah and Rohingya from Myanmar, are increasingly becoming victims of trafficking;
• -the effective and swift investigation of offences under the Anti-Trafficking Act is hampered by a number of factors such as the limited coordination among enforcement agencies and the lack of skills to handle cases of trafficking as well as corruption of law enforcement officers; and
• -the shelters run by the Ministry of Women, Family and Community Development which provides psychological, medical and other support services to victims of trafficking, are equivalent to detention centres where trafficked persons are treated as criminals in custody rather than victims.

In light of the above information, the Committee requests the Government to strengthen its efforts to prevent, suppress and combat trafficking in persons, and to take the necessary measures to ensure that all persons who engage in trafficking and related offences are subject to investigation and prosecutions. In this regard, the Committee requests the Government to take measures to strengthen the capacities of the law enforcement bodies, to ensure that they are provided with appropriate training to improve identification of the victims of trafficking as well as measures to ensure greater coordination among these bodies. It requests the Government to provide information on the measures taken in this regard as well as information on the number of victims of trafficking who have been identified and who have benefited from adequate protection. It also requests the Government to provide information on prosecutions and convictions pronounced. The Committee finally requests the Government to indicate the measures taken to implement the National Action Plan to Combat Trafficking in Persons, 2016–20, as well as the results achieved, both with regard to prevention and repression of trafficking in persons, and the protection and rehabilitation of victims of trafficking.

Following the request made by the Worker members and the Employer members at the Conference Committee, in June 2014, the Committee once again encourages the Government to consider availing technical assistance from the ILO in order to help it pursue its efforts to ensure the effective application of the Convention, so as to protect all workers, including migrant workers, from abusive practices that may amount to forced labour.

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