Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

Articles 3(2) and 5(a) of the Convention. Duties entrusted to labour inspectors in relation to the enforcement of immigration law. The Committee notes the information in the Government’s report that there are no separate data available on labour inspection activities relating to migrant workers and that, contrary to the Government’s indications in its last report, any collaboration between the labour inspectorate and the Department of Immigration, the Department of Police or other relevant departments is not intended to enforce immigration law. Each department addresses its own issues which are under its jurisdiction and based on the legislations that it is responsible for enforcing. However, the Committee notes from the information contained in the annual reports of the Labour Department for Sabah, the Labour Department for Sarawak and the Labour Department for Peninsular Malaysia that, since the 2010 amendments to the Anti-Trafficking People and Smuggling of Migrants Act 2007, labour officers have assumed enforcement functions in this area.

The Committee observes that through the 2010 amendments, the title of the Act has been amended to “the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act,” and under section 27(1)(e) of the Act, all labour officers (including labour inspectors) are included among the enforcement officers for the purpose of the Act along with police officers, immigration officers, customs officers and the Malaysian Maritime Enforcement Agency Officers. A new section (Part IIIA) has been inserted specifically relating to the offense of smuggling of migrants and a distinction introduced between trafficked persons and “illegal migrants” who, according to the explanatory statement attached to the bill, “normally seek and finance the illegal migration themselves and the only danger of exploitation faced is cruel or inhuman or degrading treatment of being endangered in the course of their journey”. Indeed, while the Act still provides immunity to trafficking victims for immigration offences such as illegal entry, unlawful presence and possession of false travel documents (section 25) and entitles trafficked persons to victim care, section 51(1)(a) of the Act entrusts enforcement officers, including labour inspectors, with investigating into the circumstances of each case for the purpose of reporting to a magistrate as to whether a person is a trafficked person entitled to protection or otherwise qualifies as an “illegal migrant” who is excluded from the protection of the Act. Furthermore, in the case where victims are identified as trafficked persons by enforcement officers, section 51(3) provides that if the magistrate is satisfied that the person is a trafficked person who is a foreign national, he/she may order that such trafficked person be placed in a place of refuge for a period not exceeding three months and thereafter to release him to an immigration officer for necessary action in accordance with the provisions of the Immigration Act 1959/63. In case the magistrate finds that the person is not a trafficked person and is a foreign national, he/she may order that person to be released to an immigration officer for necessary action in accordance with the provisions of the Immigration Act 1959/63. Section 51(5) provides that an extension of the protection order may be granted only for the purpose of completing the recording of evidence by the trafficked person.

In relation to the scope of the Convention with regard to victims of trafficking or workers who have been smuggled into the country at their own will, the Committee would like to refer to paragraphs 76–78 of its 2006 General Survey on labour inspection, in which it emphasized, in relation to the assignment to labour inspectors of the task of supervising the legality of employment and prosecuting violations, including migrant workers in an irregular situation, that the primary duty of labour inspectors is to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers and not to enforce immigration law, and that the Convention does not contain any provision suggesting that any worker be excluded from the protection afforded on account of their irregular employment status. Given the potentially large proportion of inspection activities devoted to verifying legality of immigration status, the Committee has emphasized that additional duties that are not aimed at securing the enforcement of the legal provisions relating to conditions of work and the protection of workers should be assigned to labour inspectors only in so far as they do not interfere with their primary duties and do not prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers.

The Committee also wishes to emphasize that entrusting labour inspectors with the function of enforcing the Anti-Trafficking People and Smuggling of Migrants Act 2007, as amended, may not be conducive to the relationship of trust needed to create the climate of confidence that is essential for enlisting the cooperation of employers and workers with labour inspectors, as the final outcome seems to be that irrespective of their status as victim of trafficking or smuggled worker, foreign workers may be doubly penalized by not only losing their jobs, but also facing expulsion. The Committee recalls that the function of verifying the legality of employment should have as its corollary the reinstatement of the statutory rights of all the workers if it is to be compatible with the objective of the Convention. This objective can only be met if the workers covered are convinced that the primary task of the inspectorate is to enforce the legal provisions relating to conditions of work and the protection of workers.

The Committee therefore requests the Government to indicate the measures taken or envisaged, including the amendment of section 27(1) of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007, so as to ensure that the functions of enforcement officer in relation to trafficking in persons and smuggling of migrant workers are dissociated from those of inspecting the observance of workers’ rights.

The Committee would be grateful if the Government would describe the role of the labour inspectorate and the justice system in ensuring the application of sufficiently dissuasive sanctions against employers as well as the enforcement of employers’ obligations with regard to the rights of foreign workers in an irregular situation, irrespective of whether they have been smuggled or trafficked, such as the payment of wages, social security and other benefits for the period of their effective employment relationship even where they are subject to expulsion or after they have been expelled. The Committee asks the Government to provide information on the number of cases in which workers found to be in an irregular situation have been paid their due employment-related rights.

In cases where relevant provisions have not yet been adopted, the Committee requests the Government to take the necessary measures for the introduction of swift and effective procedures enabling foreign workers to recover wages and benefits due and to keep the Office informed.

Noting that foreign workers found to be smuggled are not granted immunity for immigration offences such as illegal entry, unlawful presence and possession of false travel documents, the Committee requests the Government to specify any sanctions imposed for these violations and to communicate the relevant legal texts.

Please also specify the nature of the cooperation between labour inspectors and police, immigration and customs officers in the exercise of their respective areas of competence.

Articles 5(a), 20 and 21 of the Convention. Obligation to publish and communicate an annual report on the work of the labour inspectorate and the value of registers of workplaces in this regard. The Committee notes that an annual report of the work of the labour inspection services has not been received. It notes however, that some elements relating to the subjects covered in Article 21 (a)–(g) of the Convention are provided in the annual reports for 2010 of the Department of Occupational Safety and Health (DOSH) and the Labour Departments for Peninsular Malaysia, Sabah and Sarawak, which are available through the website of the Ministry of Labour (MOHR). However, this information is insufficient to allow for an informed appreciation of the application of the Convention in practice. The Committee would like to recall that these data must be published as an integral part of an annual report on the work of the labour inspection services (Article 20(1) of the Convention).

In this regard, the Committee would like to draw the Government’s attention to its general observation of 2010, where it emphasized the benefits to be derived from drawing up and publishing an annual report on the work of the labour inspectorate. When well prepared, the annual report offers an indispensable basis for the evaluation of the results in practice of the activities of the labour inspection services and, subsequently, the determination of the means necessary to improve their services. In this context, it also recalled that the ILO supervisory bodies, including the Committee of Experts, based on all the information contained in the annual report, are able to provide support to governments in the most relevant manner possible in the implementation of the commitments deriving from the ratification of the Convention.

The Committee would also like to draw the Government’s attention, once again, to its general observation of 2009, in which it emphasized the importance of establishing and updating a register of workplaces and enterprises liable to inspection and the number of workers employed therein, which would provide the central labour inspection authorities with the data that are essential to prepare the annual report. Having previously noted the establishment of an electronic database system for the recording of new workplaces and data on inspection activities at the Labour Department Sarawak, the Committee hopes that such registers will also be established at the DOSH and the Labour Departments Sabah and Peninsular Malaysia, in order to enable the Government to fulfil its reporting obligations under the abovementioned Articles.

The Committee once again requests the Government to take all necessary measures under Articles 20 and 21 of the Convention with a view to publishing and transmitting to the Office an annual report on the work of the inspection services under the control of the central labour inspection authority in its entirety, including on the work of the DOSH and the Labour Departments Sarawak and Sabah. Please provide information on any steps taken in this regard.

In particular, please provide information on the efforts made to establish or, where appropriate, to improve a register of workplaces liable to inspection, including inter-institutional cooperation between the labour inspection services and other government bodies and public or private institutions (tax services, social security bodies, technical supervisory services, local administrations, the judicial authorities, occupational organizations, etc.) in possession of relevant data (Article 5 of the Convention).