Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

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

Article 1 of the Convention. Information on migration flows. The Committee notes from the Government’s report that there are presently 110,528 foreign workers employed in Sabah, among whom there are 70,160 male and 32,803 female Indonesian workers, and 5,548 male and 2,017 female Filipino workers. Most of the foreign workers are employed in the agricultural sector (68.60 per cent), followed by manufacturing (10.27 per cent) and domestic service (8.25 per cent). The Committee asks the Government to continue to provide statistical information, disaggregated by sex and nationality, on the number of migrant workers employed in Sabah, and an indication of the sectors in which they are employed.

Articles 2, 4 and 7. Information and assistance to migrant workers. The Committee notes that, pursuant to sections 18 and 130D(2)(i) of the Labour Ordinance (Sabah Cap. 67), which requires employers to have a written contract with their employees if the duration is longer than a month, the Minister of Human Resources issued the Labour (Contents of Contract) (Sabah) Rules in 2008. According to the Government the enforcement of the provisions of a written contract will improve migrant workers’ awareness of their employment rights, and action will be taken against those found violating the Labour (Contents of Contract) (Sabah) Rules. Noting that certain migrant workers, such as manual and domestic workers, may be excluded from the provisions of the Labour Ordinance, the Committee asks the Government to indicate which migrant workers are covered by the Labour (Contents of Contract) (Sabah) Rules, and to provide information on the measures taken to inform migrant workers about the Rules, as well as their rights and obligations set out in the national legislation. Please provide further details on the measures taken to inform and assist migrant workers during their stay in Sabah.

Article 3. Misleading propaganda. Regarding its previous comments stressing the importance of measures to combat misleading propaganda with a view to preventing migration in irregular conditions, including trafficking, the Committee notes the Government’s reply that the issue of misleading propaganda does not arise in Sabah, as only recruitment of migrant workers from Indonesia and the Philippines is permitted and is governed by a system of permits and licences issued by the Labour Department which cooperates with the Indonesian Consulate. Bearing in mind that, even where misleading propaganda is not currently a problem, preventive measures are still appropriate to ensure that it does not become a problem in the future, the Committee asks the Government to consider taking specific steps to ensure that migrant workers coming to Sabah are not subjected to erroneous information, either by employers or intermediaries, regarding their living and working conditions, and to report on the progress made.

Article 6. Equality of treatment. The Committee notes that the Labour Department has not received complaints regarding discrimination in respect of terms and conditions of employment from migrant workers pursuant to section 118B of the Labour Ordinance. The Government indicates that the Indonesian Consulate and the Labour Attaché from the Embassy of the Republic of the Philippines monitor employment contracts and the employment of their nationals, and that any cases of discrimination would be brought to the attention of the relevant authority. The Committee recalls that under the Convention the Government has the obligation to ensure that the legislation covering the matters in Article 6(1)(a) is effectively applied, particularly by means of labour inspection services or other supervisory authorities. It points out that no legislation can be considered effective if the victims do not make use of the protection offered by the law for fear of possible reprisals by the accused. The Committee therefore asks the Government to provide information on the measures taken to ensure that the legislation protecting migrant workers from discrimination with respect to their conditions of work is effectively applied and enforced, and that effective mechanisms exist for migrant workers to submit complaints without fear of reprisals. Please continue to provide information on the number and nature of complaints submitted by non-resident employees pursuant to section 118B of the Labour Ordinance (Sabah Cap. 67) concerning discrimination with respect to the matters enumerated in Article 6(1)(a)(i) of the Convention, as well as the sanctions imposed and remedies provided.

Manual workers and domestic workers. The Committee recalls that paragraphs 1 and 2(a) and (f) of the Schedule to the Labour Ordinance excludes from its application persons, irrespective of their occupation, who have entered into a contract of service with an employer under which such person’s wages do not exceed 2,500 Malaysian ringgit (RM) a month, persons who are engaged in manual labour and domestic workers. The Committee notes the Government’s explanation of the term “manual worker”. The Committee asks the Government to indicate the numbers of foreign workers, by sex and nationality, falling within the categories of manual workers, domestic workers and workers who have entered into a contract of service with an employer and whose wages do not exceed RM2,500 a month. Please indicate the specific measures taken to ensure that these workers, in particular manual workers and domestic workers, are not treated less favourably than nationals with respect to the matters enumerated in Article 6(1)(a) to (d) of the Convention. Please provide copies of any rules made by the Minister, pursuant to section 130O(j), for the engagement, repatriation and conditions of work of domestic workers.

Foreign worker levy. The Committee notes the Government’s explanations regarding the rationale behind the imposition of a levy on employers who employ migrant workers. The Government states that the levy cannot be deducted from the wages of the workers. The Committee notes the rates of levy payments for foreign workers in the plantation sector, agricultural and fishing sector, manufacturing sector, construction sector, services sector and for “domestic maids”. It notes that the annual levy is the lowest for domestic workers, plantation workers and agricultural workers (ranging from RM360 to RM540), while being the highest for service workers (RM1,440). Noting the willingness of the Government to examine the impact of the levy system on the working conditions and equal treatment of migrant workers, the Committee asks the Government to provide information on any steps taken in this regard, and to include in its examination the impact of the levy on the use of misleading propaganda contrary to Article 3 of the Convention. Please provide a copy of the regulation imposing the levy on foreign workers.

Enforcement. The Committee notes from the Government’s report that, in 2009, a total of 4,301 workplaces were inspected and that 589 cases of non‑compliance were detected. Notices were issued to correct non-compliance within 14 days, and four employers were prosecuted. The Labour Department also organizes briefings for employers to raise awareness of the provisions of the Labour Ordinance. Noting that migrant workers are mainly employed in the plantation, agriculture and fishing sectors, as well as the domestic service sector, the Committee requests the Government to provide information on the number and types of cases of non-compliance with the relevant laws and regulations detected in these sectors, as well as on any cases handed down by the courts and any violations detected by the bodies entrusted with monitoring respect for the Convention, the remedies provided and sanctions imposed. Please also indicate any measures taken or envisaged by the Labour Department to raise awareness among migrant workers about the principles and rights enshrined in the Convention, and in the relevant laws and regulations.