Direct Request (CEACR) - adopted 2024, published 113rd ILC session (2025)

Migration for Employment Convention (Revised), 1949 (No. 97) - Malaysia - Sabah (Ratification: 1964)

Articles 2 and 4 of the Convention. Information and assistance to migrant workers throughout the migration process. In its report, the Government indicates that the Department of Labour (DoL) has carried out 12 awareness talks (5 of which were held for the plantation and agriculture sector) and 3 online courses through webinars specifically on the migration of employment without any further details. The Committee requeststhe Government to indicate the type of information provided or most frequently requested by migrant workers. It also requests the Government to provide more concrete information on the activities of the DoL that specifically aim at raising awareness and providing information on labour rights in sectors that employ a large number of migrant workers, including a large number of female migrant workers.

Article 3. Misleading propaganda. The Government indicates that the Private Employment Agencies Act 1981 (Act 246) came into force in 2018 and regulates private employment agencies (PEA) and that as of June 2023, there are 80 PEA registered under the DOL. The Committee notes that under Act 246, any person who commits an offence shall, on conviction, be liable to a fine not exceeding 50’000 Malaysian ringgits (approximately equivalent to US$10’700), to imprisonment for a term not exceeding one year, or to both. It also takes note that the Agencies Association, which is in charge of monitoring the PEA, regularly hold courtesy calls with the DoL to discuss issues concerning recruitment, minimum wage and workers’ rights. The Committee requests the Government to describe in detail the respective roles of the DoL and the Agencies Association in the supervision of private employment agencies. The Committee also requests the Government to provide concrete information, including statistical data on: (i) the result of the supervision and inspection of private employment agencies by the Agencies Association or any other relevant authority; and (ii) penalties and remedies imposed in connection with violations of Act 246, especially in cases of misleading information to migrant workers.

Article 6. No less favourable treatment. Complaint mechanisms. The Committee takes note of the Government statement that, as of June 2023, the DoL has not received any complaints under the provision of section 118B of Labour Ordinance that prohibits discrimination against non-residents. It wishes to stress that the absence of complaints on discrimination may also indicate a fear of reprisals or negative consequences for a category of workers who often is at heightened risk of exploitation and abuse in the workplace due to their dependence on the job and their general fear of being deported. In that regard, the Committee observes that, following his visit to Malaysia in 2019, the United Nations Special Rapporteur on Extreme Poverty and Human Rights stated that migrant workers in the country are set up for exploitation by a confluence of factors, including unscrupulous recruitment agents and employers, a harsh immigration policy and a lack of enforcement of labour protections. They are reportedly subjected to passport confiscation, low pay in violation of minimum wage laws, poor living conditions, punishment by fines, high recruitment fees, debts to recruitment agencies and employers, and salary deductions. He also indicated that reports documenting abuses against migrant workers are consistent and numerous. The Special Rapporteur stated that officials acknowledged that workers were “scared” to report violations owing to fear of deportation and following any proceedings to enforce their rights and recommended a comprehensive new approach that acknowledges the real extent of foreign labour dependence, regulates working conditions more effectively, ensures real minimum wages and treats workers and their dependents humanely (A/HRC/44/40/ADD.1, paragraphs 59-60, 92). The Committee wishes to stress that: (1) equality and anti-discrimination legislation is only effective if the fear of reprisals or negative consequences does not deter its use by workers; and (2) the enforcement of legal rights is often acutely difficult for migrant workers as they may, in practice, lack the ability to raise concerns about their working and living conditions due to insufficient awareness or more commonly fear of reprisals (perception that enforcing rights may affect residence rights). Accordingly, mechanisms under which independent and institutionalized entities may take the initiative in investigating violations and enforcing the application of the legislation, or which are designed with explicit regard to the specificities of the situation of migrant workers, may usefully supplement normal procedures. The Committee wishes to point out the importance of taking effective action to ensure that systems governing the employment of migrant workers, especially migrant domestic workers, do not place the workers concerned in a situation of increased vulnerability, particularly when they are subjected to abusive employer practices, such as retention of passports, non-payment of wages, deprivation of liberty, and physical and sexual abuse. The effective enforcement of legislative guarantees of equality to migrant workers may be assisted by the availability of targeted advice and assistance to migrant workers, or machinery such as conciliation, mediation, or codes (see General Survey of 2016 on migrant workers, paragraph 464). Recalling that legal protection for migrant workers, and adequate and effective dispute resolution mechanisms are essential in this context, the Committee requests the Government to provide information on any specific initiatives taken or envisaged to: (i) ensure migrant workers can assert their rights without fear of deportation; and (ii) address the absence of complaints.

Foreign domestic workers. The Government indicates that the minimum wage does not apply to domestic workers due to the nature of their work, which is not related to the employer’s business, but to the needs of the employer and his family, not for profit. The Committee notes that a recent ILO study concerning the skills profiles of migrant domestic workers in the Association of Southeast Nations (ASEAN) was published in 2023. This study has assessed the average income of full-time domestic workers against the minimum wage in Malaysia to see how the wages received by migrant domestic workers compares to workers who are legally protected. Table 19 of the study illustrates that on the face of it, the average monthly wage of full-time domestic workers (US$460 in Malaysia) exceeds the benchmark minimum (US$359.37–400). However, when adjusted for the national standard working week (48 hours in Malaysia) this average wage falls below the minimum (US$339.69). The Committee further recalls that Article 6 of the Convention aims to secure no less favourable treatment to migrant workers in a regular situation as compared to nationals and that, 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. It further recalls that where female-dominated groups of workers are excluded from the application of minimum wage legislation, and in particular those most vulnerable to wage discrimination such as domestic workers, there is a possibility of indirect discrimination. The Committee reiterates its requests to the Government to adopt effective measures to ensure that migrant domestic workers are not treated less favourably than nationals with respect to matters enumerated under Article 6 of the Convention, such as remuneration, hours of work, overtime arrangements, accommodation, collective bargaining, social security, legal proceedings, etc.