Observation (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 29) sur le travail forcé, 1930 - Malaisie (Ratification: 1957)
Protocole de 2014 relatif à la convention sur le travail forcé, 1930 - Malaisie (Ratification: 2022)

The Committee welcomes the ratification by Malaysia of the Protocol of 2014 to the Forced Labour Convention, 1930. It hopes that the Government will provide detailed information on its application, in accordance with the report form adopted by the Governing Body.

Articles 1(1), 2(1) and 25 of the Convention. 1. Vulnerable situation of migrant workers with regard to the exaction of forced labour. The Committee previously noted that, despite various measures taken by the Department of Labour in order to protect migrant workers, labour rights violations and abusive working conditions of migrant workers that amount to forced labour persisted in practice, including passport confiscation by employers, wage arrears, long working hours and forced contract extension. The Committee notes the adoption of the Employment (Amendment) Act 2022 (Act A1651), and more particularly:

• –the amendment of section 60K, which now provides that no employer shall employ a foreign employee unless prior approval has been obtained from the Director-General of Labour. An employer who contravenes this provision commits an offence and shall be liable to a fine or to imprisonment for a term not exceeding five years. The Director-General of Labour may approve an application if the employer complies with specific conditions, including having no outstanding matter or case relating to any conviction for any offence under the Employment Act or in relation to trafficking in persons and forced labour;
• –new section 60KA, which provides that the employer shall, within 30 days of the termination of service, inform the Director-General of Labour of the termination; and
• –new section 90B, which provides that “any employer who threatens, deceives or forces an employee to do any activity, service or work and prevents that employee from proceeding beyond the place or area where such activity, service or work is done, commits an offence and shall, on conviction, be liable to a fine … or to imprisonment for a term not exceeding two years or to both.”

The Committee notes with interest these legislative developments, as well as the adoption of the National Action Plan on Forced Labour (2021-2025) – NAPFL, elaborated with ILO technical assistance. The NAPFL identifies four strategic goals focusing on: (1) awareness-raising; (2) legal compliance and enforcement; (3) labour migration management; and (4) access to remedy, support and protection services. The Committee notes that specific actions to improve labour migration governance are provided for in the framework of the NAPFL, with a view to: (1) improving recruitment systems and practices for migrant workers; (2) strengthening capacity of law enforcement officials for migration management and prevention of forced labour; and (3) raising awareness of migrant workers regarding legal migration pathways, workplace rights and entitlements and key relevant legislation relating to forced labour and trafficking in persons, in their own languages.

The Committee notes the Government’s indication, in its report, that on 1 January 2022, the moratorium on the recruitment of foreign workers that had been imposed since March 2021 as a result of the COVID-19 pandemic, was lifted. However, the resumption of the application and admission of foreign workers into Malaysia for employers only started on 15 February 2022. The Government adds that recruitment and employment of foreign workers remains through the Memorandum of Understanding (MOU) framework on a government to government (G to G) basis. Currently, Malaysia has cooperation with ten source countries and MOUs were signed with Bangladesh, Indonesia and Vietnam. New MOUs are being negotiated with Cambodia, India, Sri Lanka, Nepal and Thailand. The Government further indicates that, in 2021 and 2022, training activities were implemented, with the assistance of the ILO, in order to strengthen the capacities of labour inspectors in forced labour and a reporting and referral step-by-step Guide on forced labour and human trafficking was published. Furthermore, in May 2021, the Working for Workers application was launched with a view to enable workers to lodge online complaints. In this regard, the Committee notes that, as of June 2022, the Ministry of Human Resources received 17,091 complaints on various labour issues.

The Committee notes that, as highlighted in the framework of the Decent Work Country Programme for 2019–2025, migrant workers remain vulnerable to forced labour practices and are primarily employed in low-skilled and labour-intensive jobs in sectors such as construction, domestic work, agriculture and manufacturing. Furthermore, public attitudes towards migrant workers remain negative and are expressed through discriminatory actions, such as limiting or denying entry; exclusion from access to services; public support for laws that enshrine social exclusion of migrant workers; and denying equal wages on par with nationals (ILO and UN Women, Research brief, Public attitudes towards migrant workers in Malaysia, December 2020). More particularly, levels of exploitation and abuse are disproportionately high in both the plantation and domestic work sectors, largely due to the physical isolation of the workplaces, restrictions on movement, and inadequate mechanisms established to ensure accountability of employers (Enhancing standard employment contracts for migrant workers in the plantation and domestic work sectors in Malaysia, ILO, 2020). The Committee notes that, in his 2020 report, the United Nations Special Rapporteur on extreme poverty and human rights indicated that estimates of the number of migrant workers in Malaysia generally range between 3 and 6 million, inclusive of both documented and undocumented workers. Migrant workers are reportedly subjected to passport confiscation, low wages in violation of minimum wage laws, punishment by fines, high recruitment fees, debts to recruitment agencies and employers, and salary deductions. Reports documenting abuses against migrant workers are consistent and numerous. Labour protections appear widely unenforced and the situation seems not to have improved in recent years (A/HRC/44/40/Add.1, 6 April 2020, paragraphs 58–60).

While welcoming the measures taken by the Government, the Committee notes with concern the continued abusive working conditions of migrant workers that amount to forced labour, such as passport confiscation, high recruitment fees, non-payment of wages, deprivation of liberty, and physical and sexual abuse. Furthermore, it observes in this regard that the Government has not provided information on the number of prosecutions and convictions concerning cases of exploitative employment conditions of migrant workers. The Committee therefore urges the Government to continue to strengthen its efforts to ensure that migrant workers are fully protected from abusive practices and conditions that amount to the exaction of forced labour. It requests the Government to provide information on the implementation of the National Action Plan on Forced Labour (2021–25), and in particular on measures taken to:

• (i)raise awareness of migrant workers regarding legal migration pathways and labour rights, as well as public awareness of the situation of migrant workers in order to address negative public attitudes towards them;
• (ii)strengthen the capacity of labour inspectors in order to ensure the effective implementation of section 60K of the Employment Act, and enable them to detect and identify cases of forced labour and collect evidence;
• (iii)strengthen the capacity of law enforcement bodies and the cooperation among them, indicating the number of cases of forced labour of migrant workers identified and investigated, prosecutions initiated and convictions handed down;
• (iv)improve labour migration management, providing information on bilateral agreements with countries of origin and on any measure taken to strengthen international cooperation in that regard; and
• (v)ensure that appropriate protection and assistance is provided to migrant workers victims of forced labour practices, indicating the number of victims who have been identified and who have received assistance.

2. Trafficking in persons. The Committee previously noted the measures taken to strengthen the legislative and institutional framework to combat trafficking in persons, and requested the Government to pursue its efforts in this regard. The Committee welcomes the adoption of:

• (i)the Anti-Trafficking in Persons and Anti-Smuggling of Migrants (Amendment) Act 2022 (Act A1644) which: (i) expanded the definition of trafficking in persons; (ii) removed “coercion” as the only critical element in determining cases of trafficking in persons; and (iii) increased penalties for some offences including when public officials are found guilty of complicity with the perpetrators; and
• (ii)the third National Action Plan to Combat Trafficking in Persons (2021–25) which comprises four pillars: prevention, prosecution and enforcement, protection, and partnership.

The Committee notes the Government’s indication that several training activities were carried out for law enforcement officers, public prosecutors and protection officers in order to strengthen their capacity regarding the investigation and prosecution of cases of trafficking in persons and to provide protection and assistance to victims. The Government adds that specialized units on trafficking in persons were established under the Royal Malaysian Police and Immigration Department. The Committee notes that Standard Operating Procedures for enforcement agencies and National Guidelines on Human Trafficking Indicators (NGHTI) were launched by the Council for Anti-Trafficking in Persons and Anti-Smuggling of Migrants (MAPO) in 2020 and 2021. The NGHTI document serves as a standard guide, particularly for enforcement officers, in the process of identifying trafficking victims. The Government adds that in November 2021 the Ministry of Women, Family and Community Development also launched a training manual on trafficking in persons based on a victim-centred and trauma-informed approach in order to better assist victims of trafficking in persons.

According to the information provided by the Government, in 2021, 43 victims of trafficking in persons were repatriated and 47 were granted permission to move freely and work. In 2021, 11 cases of trafficking in persons were under investigation (compared to 32 cases in 2020), while no case was under prosecution (compared to 7 in 2020). The Committee notes the important decline in the number of investigations and prosecutions for cases of trafficking, and notes that the Government has not provided information on the number of persons convicted for trafficking in persons. In light of the above, the Committee strongly encourages the Government to take the necessary steps for the effective implementation of the four pillars of the National Action Plan to Combat Trafficking in Persons (2021–25) and to provide information on the specific measures taken in this regard, as well as on the assessment of the results achieved and the difficulties encountered. It further requests the Government to continue to provide information on the application of the Anti-Trafficking in Persons Act in practice, as well as the number of victims of trafficking who have been identified and who have benefited from adequate protection. Recalling that Article 25 of the Convention provides that the imposition of forced labour shall be punishable by penalties that are really adequate and strictly enforced, the Committee requests the Government to provide specific information on the investigations carried out and prosecutions initiated, as well as on the number of persons convicted under the Anti-Trafficking in Persons Act and the penalties imposed.

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