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

Labour Inspection Convention, 1947 (No. 81) - Malaysia (Ratification: 1963)

Amendment and implementation in practice of the legislation giving effect to the provisions of the Convention. Powers of labour inspectors. The Committee notes the lists of laws and regulations relevant to the work of the inspection services. In this connection, it observes that the operation of the Factories and Machinery Act 1967 (Act 139) is suspended in Sabah and Sarawak as from 1 July 1980, by virtue of a decision made by the Minister of Human Resources under the provisions of section 1(3) of the Act. The Committee would be grateful if the Government would indicate the specific instruments which regulate inspections of factories in Sabah and Sarawak.

Articles 3(1) and 17 of the Convention. Enforcement and advisory activities of the labour inspectorate. Referring to its previous direct request, the Committee takes note of the partial information supplied by the Government on the provisions relating to working conditions and the protection of workers in respect of vulnerable categories of workers. The Committee would be grateful if the Government would also describe the action undertaken by the labour inspectorate with a view to securing the enforcement of the legal provisions relating, in particular, to conditions of work and the protection of young persons, women and immigrant workers, and provide available statistical data on the number and nature of violations identified, sanctions imposed, remedies provided, etc.

Article 5. Effective cooperation with other government services and public institutions, and collaboration with employers, workers or their organizations. Further to its previous comments on this point, the Committee notes the information provided by the Government that the labour departments are in collaboration with the immigration and police departments and other relevant departments in relation to the establishment of a task force to combat irregular workers and the employers who hire them. In this connection, the Committee recalls paragraph 78 of its General Survey of 2006 on labour inspection in which, noting that inspections of clandestine work of illegal employment, which are increasingly closely linked to irregular migration, are carried out through a partnership between the labour inspectorate and other public administration bodies, it recalled that the primary duty of labour inspectors was to protect workers and not to enforce immigration law. The Committee therefore requests the Government to explain how this primary duty of labour inspectors is fulfilled in the context of actions with respect to irregular workers.

The Committee also notes that such collaboration aims at contributing to the preparation of legislation or standards by soliciting public comments or by disseminating information through dialogue, seminars and talk at the National Council for Safety and Health (NCOSH). The Committee requests the Government to provide information on its assessment of the practical impact of these collaborative activities. It would also appreciate if the Government would continue to provide up to date and documented information concerning any new collaboration of the labour inspectorate with other public institutions and the social partners, and of its practical results.

Article 12. Powers of labour inspectors. The Committee notes the copy provided by the Government of the Labour Ordinance Sabah (Cap. 67) and the Labour Ordinance Sarawak (Cap. 76), as amended. It observes that not all provisions are in line with relevant parts of the Employment Act 1955 (Act 265), contrary to the Government’s indication. In particular, section 66 of the Employment Act provides, in line with Article 12(2) of the Convention, that labour inspectors must notify the employer of their presence unless they have reasonable grounds to believe that such notification might be prejudicial to the performance of their duties. The Sabah and Sarawak Ordinances, however, do not contain such provisions. The Committee requests the Government to explain how Article 12(2) of the Convention is given effect under the Labour Ordinance Sabah (Cap. 67) and the Labour Ordinance Sarawak (Cap. 76).

Articles 17(2), 18 and 21. Violations and penalties imposed. Cooperation with the justice system. Further to its previous comments on this point, the Committee notes the information provided by the Government on the reason for the one single case of prosecution, as a result of the 3,288 inspections carried out in Sarawak in 2006, and how the case was established by the Magistrates’ Court. It also notes the number of cases referred to the courts by the labour inspectorate. The Committee would appreciate if the Government would continue to provide the relevant up-to-date information.

Article 21. Analysis of the results of labour inspection activities. Further to its last comments on this point, the Committee notes the Government’s clarification provided with respect to the terms “employer reprimanded” and “workers involved”. It also notes the indication by the Government that the seemingly contradictory relationships between the reduction in the number of inspections and the increase in the number of violations reported as regards Peninsula Malaysia in 2005 and 2006 was due to the improved quality of inspections. The Committee would appreciate if the Government would provide specific information concerning the measures taken to improve the quality of inspections. It also notes the explanation by the Government that the amendment of the Labour Ordinance Sarawak (Cap. 76) in October 2005 resulted in a wider use of the employers’ register book, which has been replaced since 2006 by the labour market database system. In this connection, the Committee notes that the statistics available from the Labour Department of Sabah concerning the evolution of the number of inspections indicate that the number rather decreased substantially in 2007 and then increased back to the 2005 level in 2008. The Committee requests the Government to provide information on any similar measures to those implemented in Sarawak, which may have been taken since the amendment of the Labour Ordinance Sabah (Cap. 67).

Collection and contents of statistical information on the work of the labour inspection services. The Committee notes the various information concerning: (i) the statistical data and information for 2008 provided by the labour departments; laws and regulations relevant to the work of the inspection services; number of inspecting officers; number of workplaces liable to inspection; number of inspection visits; information on the size of workplaces inspected; number and percentage of employers not complying with the labour legislation; and statistics of industrial accidents; and (ii) the statistical data and information for the period 2006–08 provided by the Department of Occupational Safety and Health (DOSH): laws and regulations relevant to the work of the inspection services; number of inspecting officers; number of workplaces liable to inspection; number of inspection visits by types of workplace; legislation on occupational safety and health (OSH) and industrial sectors; statistics of violations and penalties imposed; and number of industrial accidents and occupational diseases.

With respect to the abovementioned set of information in (i), the Committee observes that the total number of workplaces inspected in Peninsular Malaysia in 2008 (data No. 3) and the total number of workplaces inspected in Peninsular Malaysia in 2008, disaggregated by the size of establishments (data No. 4) differ nearly by 10,000, and that the difference between data No. 3 and the number of workplaces inspected (data No. 2) differ by nearly 1,200. The total number of industrial accidents reported to the labour departments and the social security organizations in 2008 is different from the number provided by the labour departments and the number provided by the DOSH. The Committee requests the Government to clarify the correct total number of workplaces inspected. While appreciating the breakdown by sex provided by the Government concerning the number of workers inspected, the Committee would appreciate if the Government would provide the same disaggregation on the number of inspectors (data No. 1), in view of the provisions under Article 8 of the Convention. As regards the information on the number of workplaces inspected and violations of the labour legislation (data No. 5), please provide the disaggregation by region and the law concerned, indicating the number and nature of violations identified.

Concerning the information in (ii), the Committee observes that, as regards the numbers of inspection officers (data (a)), while the number of technical staff increased considerably between 2006 and 2007, it decreased in 2008 below the 2006 level. On the other hand, the number of administrative and diplomatic officers more than tripled between 2007 and 2008. The number of agricultural staff nearly doubled between 2007 and 2008. In view of these changes, the Committee would appreciate if the Government would explain the evolution of the general policy of the OSH inspection, which may explain the reasons for the abovementioned changes in the number of specific categories of inspection officers. The Government is also requested to provide the data on the number of OSH inspecting officers, disaggregated by sex, in view of the provisions under Article 8 of the Convention.

Labour inspection and child labour. The Committee notes the Government’s indication that the labour departments have been engaged in consultations with the police and the Immigration Department in respect of the employment of child workers, including awareness raising among employers on child labour and the related legislation. Periodic meetings and cooperation are carried out with the agencies under the Ministry of Human Resources in relation to issues on the protection of children dealt with under the Child Act 2001 (Act 611). The Committee also notes the references made by the Government to the provisions of the legislation of Peninsular Malaysia, Sabah and Sarawak concerning the employment of children and young persons. It further recalls the information provided by the Government on the role played by the labour inspectorate in ascertaining cases of child labour, as mentioned in its observation of 2009 under Convention No. 182. The Committee would be grateful if the Government would continue to provide information on any up to date and documented legislative, administrative or practical measures taken or envisaged with a view to realizing active participation of labour inspectors in combating child labour in establishments covered by the Convention.