Cas individuel (CAS) - Discussion : 2013, Publication : 102ème session CIT (2013)

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 Government provided the following written information.

The National Action Plan against trafficking in persons and smuggling of migrants (2010–15) had been introduced. There were eight core areas covered by the Action Plan and these were as follows: (i) establishment of the Council for Anti-Trafficking in Persons and Anti-Smuggling of Migrants (the Council); (ii) strengthening of the existing law relating to anti-trafficking in persons and anti-smuggling of migrants; (iii) establishment of shelter homes; (iv) collaboration with civil society groups; (v) capacity building for enforcement agencies; (vi) documenting standard operating procedures in relation to anti-trafficking in persons and anti-smuggling of migrants; (vii) international/bilateral cooperation; and (viii) raising awareness.

The Council which was established in 2008 and headed by the Secretary-General of the Ministry of Home Affairs, had the objective of formulating and overseeing the implementation of the National Action Plan on the prevention and suppression of trafficking in persons including the support and protection of trafficked persons.

In 2010, the original Anti-Trafficking in Persons Act, 2007 (Act 670) was amended to include the following: (i) trafficking in persons which was defined as all action involved in acquiring or maintaining the labour or services of a person through coercion, for the purpose of exploitation. The profit in trafficking came not from the movement of person but from the sale of a trafficked person’s services or labour in the country of destination; and (ii) smuggling of migrants which meant arranging, facilitating or organizing, directly or indirectly, a person’s unlawful entry into or unlawful exit from any country of which the person was not a citizen or a permanent resident. There were presently six gazetted shelter homes for victims of labour trafficking. Each shelter could accommodate 200 persons at any one time and had been in operation since 15 August 2010. In addition to government-operated shelters, the Government also actively cooperated with civil society groups for the establishment of additional shelters and the provision of counselling and skills training for the trafficked victims. Capacity building was also an essential component of efforts to heighten the investigative and intelligence gathering of enforcement agencies. Towards this end, front line agencies such as the Immigration Department, the Royal Malaysia Police, the Malaysian Maritime Enforcement Agency, the Royal Malaysian Customs and the Department of Labour were actively pursuing training courses either locally or in cooperation with other countries such as Australia and Brazil.

Peace, prosperity and rapid development of the country had attracted foreigners, the majority of whom were looking for job opportunities, especially those from countries which were experiencing political and economic instability. At the same time, the country needed foreign workers in certain sectors such as services, plantation, industrial, construction and manufacturing. The existence of anti-trafficking law supplemented by the Employment Act, 1955 and other labour legislation addressed the issue of labour exploitation. In order to regulate the recruitment of the foreign workforce, the Government had signed Memoranda of Understanding (MOU) with at least 13 countries of origin including a specific MOU on the recruitment and placement of domestic workers. All the MOUs were aimed at benefiting equally both employers and employees. A case in point was the MOU on the recruitment of Indonesian foreign workers which was signed in 2003 and subsequently there were a series of negotiations to further strengthen the greater bilateral cooperation between the Governments of Malaysia and Indonesia. The Government would not tolerate transgression of the Anti-Trafficking in Persons Act. As of April 2013, 442 such cases were taken to court and 174 cases were pending trial under the Anti-Trafficking in Persons Act, 2007. The implementation of this law would continue to be the core commitment of the Government in handling of issues concerning forced labour.

In addition, before the Committee a Government representative, referring to and supplementing the written information provided, emphasized that his Government had taken various steps in its constant endeavour to monitor, prevent and suppress the problem of trafficking in persons, including the ratification of the United Nations Convention against Transnational Organized Crime and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (the “Trafficking Protocol”). In addition, 30 state specialist prosecutors had been appointed and guidelines had been issued on the handling of cases of trafficking in persons. Various measures had also been taken to avoid misidentification between the crimes of trafficking in persons and the smuggling of migrants. Capacity building was essential in ensuring that the personnel of all the agencies and non-governmental organizations involved in efforts to combat trafficking in persons had the relevant knowledge and skills, particularly in the areas of policy, prevention, protection, rehabilitation and prosecution. In that respect, it was of great importance to share knowledge and experience with foreign partners. Standard operating procedures had also been developed for the committees of the Council for Anti-Trafficking and Anti-Smuggling of Migrants and a national referral system was being developed to screen all cases and reports of trafficking in persons and smuggling of migrants. Government action in the field of capacity building included the seminar conducted in 2011 by the Attorney-General’s Chambers for participants from non-governmental organizations, private agencies, universities and public agencies on the rights of employees and the roles and responsibilities of employers.

He emphasized that trafficking in persons was a complex crime that commonly involved crime syndicates operating in organized, structured and well-established networks. A comprehensive and coordinated response was therefore essential, backed up by cooperation and collaboration at the national, regional and international levels. As the problem of trafficking in persons was relatively new in the country, it had been necessary to focus on the constant and widespread dissemination of information, as well as investing in capacity building and obtaining the support of community leaders to shape public opinion. Efforts were being made to establish close cooperation and coordination between enforcement agencies, the relevant ministries and agencies, including state governments and local authorities, with regard to information sharing, entry point control, prevention, investigation and prosecution with a view to ensuring the timely protection of victims and the punishment of perpetrators. The Government was also placing emphasis on a systematic and effective information management system to improve inter-agency coordination and raise public awareness through the dissemination of the relevant information.

The Employer members emphasized their wholehearted support for the Convention and their commitment to the elimination of forced labour, including trafficking in persons for the purpose of forced labour. They also supported the initiative to set new standards to supplement the Convention. They recalled that Malaysia was primarily a country of destination of migrant labour and, in the same way as other countries of destination, there appeared to be a number of issues in the country in relation to migrant labour. There were reports of migrant workers being subjected to such practices as having their passports retained by their employers, wages remaining unpaid and being deprived of their liberty, which constituted problems in relation to the application of the Convention and the law in general. Two Governments, Indonesia and Cambodia, had suspended the sending of their citizens to work in Malaysia, although the Government of Indonesia had recently lifted the suspension following the conclusion of an agreement with the Government of Malaysia that Indonesian migrant workers could retain their passports, earn market wages and benefit from one day of rest each week. The Employer members noted that there appeared to be some progress on the issue, particularly in relation to the agreement with the Government of Indonesia. They also noted the adoption of the Anti-Trafficking in Persons Act, 2007, which established penal sanctions for individuals convicted of trafficking for forced labour. It appeared that the Government was actively prosecuting violations of the Act and obtaining convictions. The Employer members hoped that the convictions were accompanied by adequate punishment and would like to see statistical data on that issue. The numerous other measures mentioned by the Government representative were also of interest.

The Worker members recalled that forced labour was prohibited by the Constitution and legislation. The Anti-Trafficking in Persons Act had been adopted in 2007 to combat a phenomenon that had been described as early as 2001 as a scourge that was growing with technological progress in transport and organized crime. Malaysia was a country of destination and, to a lesser extent, a country of origin and transit for trafficked men, women and children, especially for prostitution and forced labour. Although the new legislation provided for severe sanctions, there was no avoiding the fact that the Government had failed to supply any information on the sanctions imposed. An Interpol report referred specifically to the forced prostitution of Ugandan women in Malaysia, some of whom had been diverted while travelling to China or Thailand and had been forced to engage in prostitution. There were no precise figures. However, the vast majority of the victims of human trafficking were part of the 2 million workers in a regular situation and roughly 1.9 million workers in an irregular situation, essentially from Indonesia, Nepal, India, Thailand, China, the Philippines, Burma, Cambodia, Bangladesh, Pakistan and Viet Nam. Children were often exploited as cheap labour or for sex exploitation, forced marriage, criminal activities, armed conflict or begging. United Nations Children’s Fund (UNICEF) had highlighted the fact that the trafficking of children was considered normal in the country. Cheating migrants out of their wages, confiscating their passports, placing them in debt bondage and housing them in warehouses were common practice. The trafficking in person for the purpose of forced labour was one of the most lucrative businesses in the world. Yet the Government had cited only 844 victims of trafficking who were under court protection, pursuant to section 51 of the 2007 Act, and 2,289 others who had been granted temporary protection for 14 days under section 44 of the Act. Either the Government was not in possession of accurate statistics, or its presentation of the facts was over-optimistic. In any event, a veritable gulf existed between the information that it had provided and the data supplied by non-governmental organizations and international institutions.

Recalling that the Convention required the illegal exaction of forced or compulsory labour to be punished by penalties that were truly effective and strictly enforced, the Worker members regretted that the Government’s report contained no information on the penalties imposed in practice. That showed that the Government was not doing enough to combat the problem and was not really trying to eradicate forced labour, which had traumatic moral and physical effects on those concerned, many of whom subsequently experienced great difficulties in reintegrating into society. And yet, as a signatory since 2009 to the Trafficking Protocol, the Government should be aware of the provisions of article 6 on that subject. The Worker members considered that it appeared obvious that the Government was respecting neither the letter nor the spirit of the Convention and that greater efforts were needed to implement the observations of the Committee of Experts. The case under discussion was particularly serious, and probably only represented the tip of the iceberg.

The Worker member of Malaysia emphasized that the estimated 2.2 million migrant workers in a regular situation in Malaysia, as well as the estimated 2 million workers in an irregular situation, were engaged, not only in plantations, which used to be their main employer, but also in manufacturing, services and domestic work. The migrants were from neighbouring countries and were brought in by recruitment agencies. However, there was no proper monitoring mechanism for migrant workers, there had never been a comprehensive policy for foreign labour and the Government had no knowledge of the exact numbers of workers concerned. While in most cases there were no agreements between the Government and the Governments of countries of origin, in 2011 an agreement had been signed with the Government of Indonesia under which Indonesian domestic workers had the right to retain their passports, earn market wages and benefit from one rest day a week. Although the Government seemed to consider the agreement with Indonesia as the answer to the problems experienced by migrant workers, the reality was quite different. There continued to be a complete failure to speak honestly and openly about the institutionalized nature of the abuse that they suffered, while discussions between the governments concerned tended to focus on maximizing profits, minimizing costs and keeping market rates competitive. And yet, Indonesian migrant domestic workers suffered from various forms of violence. Over half of them suffered physical abuse, 15 per cent were sexually abused and their poor working conditions included no weekly paid rest day, the non-payment and wrongful deduction of wages, improper accommodation, long working hours, multiple jobs and undernourishment. Investigations by non-governmental organizations showed that almost half of migrant domestic workers were below the age of 21, which was the minimum legal age for domestic work in Malaysia. Recruitment agencies subjected migrant domestic workers to harsh treatment, including the retention of their passports, searches and confiscation of the contact details of their embassies and of non-governmental organizations which could protect them. The agreement concluded with the Government of Indonesia might have been more effective if there was a proper mechanism to monitor its implementation.

Migrant workers from Bangladesh also suffered from severe abuse. Following the lifting of the ten-year freeze on their recruitment by the Government of Malaysia in 2006, thousands of Bangladeshi workers had been recruited and cheated by approved outsourcing companies, which retained their passports and failed to renew their work permits, leaving them in an irregular situation. Under a programme launched in 2011, the Government had approved 340 agents to register and legalize the migrant workers, including issuing them with new passports and work permits. However, many of the agents were, in practice, the same outsourcing companies which had subjected them to abuse. A year and a half since the launch of the programme, and six months after the final deadline for the completion of the legalization process, thousands of workers were still in an irregular situation. They had not only lost one year’s wages, but had no passports and lived in fear of arrest, detention and maltreatment, and were often threatened by their agents. Although complaints had been filed, none of the agents had been arrested. An example was an agent which, according to reports from the workers concerned, had registered over 5,000 workers, collected money from them, retained their passports and continued to threaten them. No action had been taken despite the numerous complaints made to the Bangladesh authorities. The authorities of Malaysia and Bangladesh should therefore be called upon to investigate the situation immediately and to retrieve and return the workers’ passports. He called on the Government to draw up a clear roadmap to ensure the rights of all domestic and migrant workers in the country, improve screening to identify victims of abuse and trafficking, and provide victims with legal aid, counselling and other forms of assistance. The Government needed to have the political will to impose severe penalties under the Anti-Trafficking in Persons Act as a deterrent to abuse by traffickers, agents and employers. The discussion of the case by the Committee was particularly welcome and offered hope to the workers concerned.

The Employer member of Malaysia, stating that forced labour could not be condoned, fully supported the initiatives and positive actions of the Government in combating and eliminating forced labour, especially trafficking in persons. The root cause of foreign workers having huge debts even before leaving their country needed to be addressed urgently. He therefore urged the ILO and the other relevant United Nations agencies to work closely with the countries of origin to address the situation of informal recruiters imposing high fees on foreign workers. Governments of the countries of origin should ensure that exorbitant fees were not imposed on their nationals seeking employment abroad as these workers were already contributing tremendously to their country through the remittances they sent home. His organization had been calling for clearer and consistent policies on the recruitment of foreign workers with a view to reducing the role of informal recruiters. In this regard, he referred to two initiatives carried out under the ILO TRIANGLE Project in which the Malaysian Employers Federation was involved, notably: the study for the ASEAN (Association of Southeast Asian Nations) Confederation of Employers (ACE) to develop a compendium of best practices to be used by countries of origin and destination in managing the pre-departure, the employment and post-employment of foreign workers; and the forthcoming “Guidelines for Malaysian Employers on Managing the Employment of Foreign Workers”. He wished that similar collaborations with the ILO Regional Office in Bangkok could be replicated in other countries in the region. He expressed the sincere hope that with the positive initiatives in place, the forced labour issues, especially those pertaining to the employment of foreign workers, would be better managed and eventually eliminated.

The Worker member of Indonesia highlighted that Malaysia was one of the largest countries of destination for migrant workers in South-East Asia, and that there were approximately 2 million migrant workers from Indonesia. Due to loans at exorbitant interest rates, most migrant workers could not afford to return to their home countries, and some were in bonded labour. A large number of migrants were working in hazardous situations, including long working hours, and faced physical and sexual abuse. Turning to the specific situation of women domestic workers and their vulnerability to abuse, including harassment and rape, she recalled that the Government of Indonesia had imposed a ban imposed on sending Indonesian domestic workers to Malaysia. The ban had been lifted after the signing in 2011 by the Governments of Malaysia and Indonesia of a Memorandum of Understanding (MOU) on provisions on minimum wages, rest days, and the right of domestic workers to retain their identity documents. However, in practice employers or private recruiters were still retaining passports of domestic workers and the MOU was not being properly implemented. In addition, the MOU allowed for overtime payment instead of providing the one day of rest, without a proper mechanism to monitor such overtime payments. The lack of effective enforcement of the MOU could result in encouraging slavery-like practices and she considered that the Government had yet to demonstrate its strong commitment to protect domestic workers against forced labour.

The Worker member of Cambodia drew attention to the exposure to forced labour of women and girls migrating to Malaysia as domestic workers. The lack of employment opportunities led many women to migrate, and out of the 20,909 workers migrating in 2010, 18,038 were domestic workers. He pointed to situations of forced labour at the hands of employers or informal labour recruiters operating in Malaysia, as well as Cambodia, through illegal salary deductions, non-payment of wages, and passport confiscation. Legal protection to address excessive working hours, psychological, physical and sexual abuse against domestic workers was also insufficient as the Employment Act excluded domestic workers from key labour protections. Workers who wished to leave an abusive employer without permission lost their legal status and often faced penalties under immigration law. This increased their reluctance to leave an abusive employer exposing them to forced labour practices. While noting the Cambodian Government’s announcement to freeze the sending of migrant workers to Malaysia as a response to the abovementioned violations, he hoped that the Government of Malaysia would also stop tolerating forced labour practices against migrant domestic workers.

The Worker member of the Philippines highlighted that Malaysia had become a country of origin and destination, as well as a transit country for trafficking in persons, especially of women and children. The majority of the victims of trafficking were migrant workers from Indonesia, Nepal, India, Thailand, China, the Philippines, Burma, Cambodia, Bangladesh, Pakistan and Viet Nam. In 2009, there were approximately 2 million migrant workers in a regular situation and an almost equal number in an irregular situation in the country. Migrant workers in plantations, construction sites, textile factories and domestic service experienced restrictions on movement, fraud in wages, passport confiscation or debt bondage. A significant number of young women were recruited for work in restaurants and hotels and subsequently coerced to work in the sex industry; many subcontracting companies recruited workers who were then submitted to conditions of forced labour. He drew attention to the very low number of prosecutions under the Anti-Trafficking in Persons Act and the lack of information on specific sanctions applied to those convicted, as well as the deportation of some victims of trafficking who had been given protective orders at an initial stage. The speaker urged the Government to intensify its efforts to: (i) investigate and prosecute labour trafficking offences; (ii) identify labour trafficking victims; (iii) prosecute cases of trafficking-related corruption by government officials; and (iv) enhance collaboration with trade unions, non-governmental organizations and international organizations to improve services for victims in public shelters.

The Government representative reaffirmed his Government’s firm commitment to regularize and increase its collaboration with the social partners in the country, and cooperate with other governments and the international community with a view to minimizing, if not eliminating, trafficking in persons across borders. As shown in the National Action Plan on trafficking in persons and smuggling of migrants (2010–15), the Government set out policies to minimize the possibility of trafficking in persons, through collaboration and constructive dialogue with the social partners and civil society. Regional cooperation with the Asian countries to regulate cross-border migration of workers, especially those without proper documentation, was also important in the context of efforts to combat trafficking in persons. Through the Council for Anti-Trafficking in Persons and Anti-Smuggling of Migrants, the Government had innovated appropriate and workable mechanisms and approaches in tackling and managing the issue over the past three years. While the concerns raised before the Committee were shared by the Government, the responsibility to address the issue of trafficking in persons should not be put on the Government alone. Rather, collective efforts were needed, involving all parties concerned, including the social partners. Due to the importance of enforcement, the enforcement agencies would provide full cooperation to the parties concerned to address and resolve this issue in an expeditious manner.

The Employer members stated that it was the first time that this case was being discussed in the Committee and, unlike the Worker members, they did not consider the observation of the Committee of Experts merely describing the “tip of the iceberg”. The Government did not deny that there were forced labour issues in the country and had provided information on the constructive measures it had taken to address them. The Employer members encouraged the Government to work with the social partners and with other countries in the region, in particular countries of origin, to address the issue of forced labour. In this regard, more emphasis could be placed on memoranda of understanding such as the one with the Government of Indonesia with a view to ensuring protection of the rights of workers from these countries, concerning hours of rest, leave, as well as wages, and that workers could keep their passports. They asked the Government to submit in 2014 a report to the Committee of Experts on the progress made.

The Worker members, recalling that Malaysia had ratified the Convention in November 1957, observed that there had been a sharp increase in human trafficking for forced labour in the country. Linked as it was to globalization, it was a phenomenon that was to be found in many countries. In 2007, Malaysia had adopted the Anti-Trafficking in Persons Act that provided for penal sanctions of up to 20 years in prison. However, no information was available on any specific sanctions that might have been imposed under the Act. The overwhelming majority of persons trafficked in Malaysia were drawn from the 4 million foreign workers in the country, whether in a regular or irregular situation, most of them originating from South-East and South Asia. A great many of them had been deceived about the type of work they would be expected to do, about their wages and about the treatment they would be subjected to, such as sexual exploitation, debt bondage or worse. The victims of forced labour were often treated as criminals when they were found in an irregular situation.

The Worker members considered that the Government was respecting neither the letter nor the spirit of the Convention, that the case under discussion should be followed up very closely by the Committee and that the Government should implement the Committee of Experts’ recommendations without delay. They called on the Government to pursue its efforts to combat trafficking, notably as part of the National Action Plan on trafficking in persons and smuggling of migrants (2010–15), and to provide information on the steps taken and the results obtained. Recalling that under Article 25 of the Convention, States were required to apply effective penal sanctions strictly in cases of forced labour, they called on the Government to provide information on the specific sanctions that had been imposed on persons sentenced under the Anti-Trafficking in Persons Act. The Worker members indicated that in June 2009 the Indonesian Government had placed a moratorium on the placement of domestic workers in Malaysia in order to protect its nationals and that since then the two countries had signed a revised MOU on the employment of Indonesian domestic workers. Unlike the previous agreement, the MOU stipulated that Indonesian domestic workers were allowed to keep their passports while in Malaysia. They were also entitled to one day of rest per week and to be paid according to the going market rate. The Worker members noted, however, that the agreement did not appear at all to be respected. They urged the Government to take all necessary steps for the MOU to be applied both in law and in practice and invited it to request appropriate ILO technical assistance.

Conclusions

The Committee took note of the oral and written information provided by the Government representative and the discussion that followed concerning trafficking in persons and the vulnerable situation of migrant workers with regard to the exaction of forced labour.

The Committee noted the information provided by the Government representative outlining the various measures taken to combat trafficking in persons and smuggling of migrants, including the implementation of the National Action Plan against trafficking in persons and smuggling of migrants (2010–15) which encompassed capacity building for law enforcement agents and awareness raising, as well as measures to provide victims of trafficking with shelters. It also noted the Government’s information that, given the high number of migrant workers in certain sectors such as services, plantations, construction, manufacturing and domestic work, the Government had signed Memorandum of Understanding (MOUs) with 13 countries of origin to regulate the employment and recruitment of migrant workers, including a specific MOU on migrant domestic workers.

While noting the policies and programmes adopted by the Government to address trafficking in persons, as well as a number of cases filed under the Anti-Trafficking in Persons Act, the Committee noted the concern expressed by several speakers regarding the magnitude of this phenomenon. The Committee therefore urged the Government to reinforce its efforts to combat trafficking in persons. In this regard, it requested the Government to pursue its efforts to strengthen the capacity of the relevant public authorities, including the labour inspectorate, so as to enable them to identify victims and to deal effectively with the complaints received. In addition, it requested the Government to continue to take measures to provide victims of trafficking with adequate protection and compensation. Moreover, noting an absence of information in this regard, the Committee requested the Government to provide information on the specific penalties imposed on persons convicted under the Anti-Trafficking in Persons Act.

While noting the bilateral agreements signed between the Government of Malaysia and other countries to regulate the conditions of employment of migrant workers, the Committee noted with regret the absence of information from the Government on any additional measures taken to provide protection to the large number of migrant workers in the country. In this regard, the Committee noted the information provided by several speakers that workers who willingly entered Malaysia in search of economic opportunities subsequently encountered forced labour at the hands of employers or informal labour recruiters, through means of restrictions on movement, non-payment of wages, passport confiscation and the deprivation of liberty. The Committee recalled the importance of taking effective action to ensure that the system of employment of migrant workers did not place the workers concerned in a situation of increased vulnerability, particularly where they were subjected to abusive employer practices, which might cause their employment to be transformed into situations that could amount to forced labour. The Committee therefore urged the Government to take appropriate measures to ensure that, in practice, victims were not treated as offenders and were in a position to turn to the competent judicial authorities in order to obtain redress in cases of abuse and exploitation. Moreover, noting an absence of information on the number of prosecutions concerning the exploitative employment conditions of migrant workers, the Committee urged the Government to take immediate and effective measures to ensure that perpetrators were prosecuted and that sufficiently effective and dissuasive sanctions were imposed. The Committee encouraged the Government to continue to negotiate bilateral agreements with countries of origin, to ensure their full and effective implementation, so that migrant workers were protected from abusive practices and conditions that amounted to the exaction of forced labour once they were in the country, and to work with the countries of origin to take measures for their protection prior to departure.

The Committee requested the Government to accept a technical assistance mission to ensure the full and effective application of this fundamental Convention. It requested the Government to provide a detailed report to the Committee of Experts addressing all the issues raised by this Committee and the Committee of Experts for examination at its next meeting. The Committee expressed the hope that it would be able to note tangible progress in the application of the Convention in the very near future.