Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 353, Marzo 2009

Caso núm. 2637 (Malasia) - Fecha de presentación de la queja:: 10-ABR-08 - En seguimiento

Allegations: The complainant alleges that the Government refuses to allow migrant domestic workers to establish organizations to defend their interests

1. 1039. The complaint is set out in a communication of 10 April 2008 from the Malaysian Trades Union Congress (MTUC).
2. 1040. The Government submitted its observations in a communication of 29 October 2008.
3. 1041. Malaysia has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. The complainant’s allegations

1. 1042. In its communication of 10 April 2008, the complainant states that foreign domestic workers are the most marginalized group of migrants in the country: they are not recognized as workers in the labour legislation; they do not receive standardized contracts, apart from Filipino domestic workers, and work in isolated conditions for very long hours without holidays. The complainant states that migrant workers are entirely at the mercy of their employers and have no access to mechanisms for their protection, leaving them vulnerable to violence and abuse.
2. 1043. The complainant indicates that following several widely reported cases of abuse of Indonesian domestic workers, it decided to organize domestic workers by registering an association of domestic workers under the Societies Act. The aims and objectives of the association were to obtain reasonable wages, hours of work and other conditions of employment; to promote a spirit of mutual respect and understanding between the association and employers; to aid domestic workers in investing their earnings; and to organize educational activities and professional trainings on skills, safety, and the labour law. The complainant further states that it held an inaugural meeting, formed a committee, drafted a constitution and submitted the requisite documents for registration of an association of migrant domestic workers to the Registrar of Societies on 8 May 2006. On 23 July 2007, the Registrar rejected the application without providing any reason for doing so.
3. 1044. With respect to migrant workers in general (apart from migrant domestic workers), the complainant states that the Department of Trade Union Affairs has ruled that they may join trade unions representing other workers at their respective enterprises. However, the work permits issued by the Immigration Department stipulate, as a condition of employment, that migrant workers may not join a “persatuan”, or association, which is interpreted by employers to also mean a “kersatuan” – or trade union. Most employers consequently prevent migrant workers from joining trade unions. In this regard, the complainant annexes copies of an employment contract where it is stipulated that the migrant worker shall not participate in any activity connected with a Malaysian trade union. Furthermore, migrant workers supplied by labour contractors are not treated as employees of the workplace where they physically work and therefore may not join a trade union, and, since unions are only permitted to organize workers employed within similar industries or at the enterprise level, migrant workers employed by labour suppliers cannot join any of the existing 600 trade unions in the country.

B. The Government’s reply

1. 1045. In its communication of 29 October 2008, the Government states that the rights of foreign workers, including their right to join a trade union, are protected under the same law that applies to all workers – the Employment Act, 1955, the Industrial Relations Act, 1967, and the Trade Unions Act, 1959. However domestic workers, whether foreign or local, are exempted from the scope of the Employment Act.
2. 1046. As concerns the 23 July 2007 rejection of the complainant’s application by the Registrar of Societies, the Government states that the Registrar reached its decision for the following reasons: (1) existing laws and guidelines on foreign workers, especially domestic workers, are adequate to accommodate their needs and concerns; and (2) migrant domestic workers may bring their concerns to their respective embassies, the Malaysian Association of Foreign Maid Agencies (PAPA) or other relevant authorities, which serve as platforms for addressing their needs and for fostering harmony.
3. 1047. The Government indicates that all applications before the Registrar of Societies are referred to other agencies, including the Royal Malaysian Police, for further recommendation, in order to ensure that the national interest is ensured. Furthermore, regular meetings and workshops are conducted, in concert with the social partners, in order to improve the existing policies to promote decent work for all – including foreign domestic workers. To date more than 20 meetings have been held between the Government and the social partners on labour issues, including those pertaining to migrant workers.

C. The Committee’s conclusions

1. 1048. The Committee notes that the present case involves allegations of the refusal of freedom of association rights to migrant workers, including migrant domestic workers, in law and in practice. The complainant alleges, firstly, that various stipulations in the labour legislation lead to the effective exclusion of migrant workers from its coverage. In particular, the complainant asserts that, while the Department of Trade Union Affairs had ruled that migrant workers may join trade unions representing other workers at their respective enterprises, the work permits issued by the Immigration Department stipulate, as a condition of employment, that migrant workers may not join a “persatuan”, or association, which is interpreted by employers to also mean a “kersatuan” – or trade union. Most employers consequently prevent migrant workers from joining trade unions. In addition, since migrant workers supplied by labour contractors are not treated as employees of the workplace where they physically work, they are unable to join any of the existing 600 trade unions in the country – which may only organize employees within similar industries or at the enterprise level. Moreover, the right to organize has been further obstructed for migrant domestic workers who are excluded from the minimum working conditions set out in the Employment Act and who have recently been denied the exercise of their organizational rights due to the refusal by the Registrar of Societies to register the newly created association for migrant domestic workers that had been constituted by the Malaysian Trade Union Congress (MTUC).
2. 1049. The Committee notes the Government’s statement that the freedom of association rights of migrant workers are protected under the same laws that apply to all workers – the Employment Act, 1955, the Industrial Relations Act, 1967, and the Trade Unions Act, 1959, while domestic workers, whether foreign or local, are excluded from the Employment Act. In this regard, migrant workers would, according to the Government, be guaranteed the right to form and join a trade union under the Trade Unions Act. The Committee recalls, however, that in previous cases concerning Malaysia spanning nearly 20 years, the Committee has commented upon a number of fundamental deficiencies in the legislation and, in particular, recommended that the Trade Unions Act and the Industrial Relations Act be amended so as to bring them into conformity with freedom of association principles. The serious matters previously highlighted concern, in particular: restrictions on the right of workers to establish and join organizations at all levels, including the primary and other levels; the excessive discretion of the registrar authority to refuse registration in violation of the principle of the right to organize freely chosen workers’ organizations without previous authorization; and restrictions on the right of workers’ organizations to adopt their rules and elect their representatives in full freedom [see e.g. Case No. 2301, 333rd Report, paras 586–594, and 349th Report, paras 165–173].
3. 1050. As for the more specific allegation relating to the refusal to register the association of migrant domestic workers, the Committee notes the Government’s reply that: (1) existing laws and guidelines on foreign workers, especially domestic workers, are adequate to accommodate their needs and concerns; and (2) migrant domestic workers may bring their concerns to their respective embassies, the PAPA or other relevant authorities, which serve as platforms for addressing their needs and for fostering harmony.
4. 1051. The Committee recalls that Article 2 of Convention No. 87 is designed to give expression to the principle of non-discrimination in trade union matters, and the words “without distinction whatsoever” used in this Article mean that freedom of association should be guaranteed without discrimination of any kind based on occupation, sex, colour, race, beliefs, nationality, political opinion, etc. [see Digest of decisions and principles of the Freedom of Association Committee, 2006, fifth edition, para. 209]. On numerous occasions, the Committee has interpreted this right to include migrant workers and has further stated that domestic workers are not excluded from the application of Convention No. 87 and should therefore be governed by the guarantees it affords and have the right to establish and join occupational organizations [Digest, op. cit., para. 267]. The Committee has further emphasized that all workers, without distinction whatsoever, whether they are employed on a permanent basis, for a fixed term or as contract employees, should have the right to establish and join organizations of their own choosing [Digest, op. cit., para. 255].
5. 1052. The Committee considers that the arguments put forward by the Government to explain the Registrar’s refusal to register the association of migrant domestic workers can in no way justify the denial of the fundamental right to organize these workers. The Committee therefore expects that the Government will take the necessary measures, including legislative if necessary, to ensure in law and in practice that domestic workers, including contract workers, whether foreign or local, may all effectively enjoy the right to establish and join organizations of their own choosing. It further requests the Government to take the necessary steps to ensure the immediate registration of the association of migrant domestic workers so that they may fully exercise their freedom of association rights. It requests the Government to keep it informed of the progress made in this regard.

The Committee's recommendations

1. 1053. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee expects that the Government will take the necessary measures, including legislative if necessary, to ensure in law and in practice that domestic workers, including contract workers, whether foreign or local, may all effectively enjoy the right to establish and join organizations of their own choosing. It further requests the Government to take the necessary steps to ensure the immediate registration of the association of migrant domestic workers so that they may fully exercise their freedom of association rights. It requests the Government to keep it informed of the progress made in this regard.