Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Forced Labour Convention, 1930 (No. 29) - Malaysia (Ratification: 1957)
Protocol of 2014 to the Forced Labour Convention, 1930 - Malaysia (Ratification: 2022)

Follow-up to the discussion of the Committee on the Application of Standards (International Labour Conference, 103rd Session, May–June 2014)

The Committee notes the detailed discussions that took place at the Conference Committee on the Application of Standards in June 2014 concerning the application of the Convention by Malaysia. The Committee notes with regret that the Government’s report has not been received.

Articles 1(1), 2(1) and 25 of the Convention. 1. Vulnerable situation of migrant workers with regard to the exaction of forced labour, including trafficking in persons. The Committee previously noted the observations submitted by the International Trade Union Confederation (ITUC) in 2011, according to which some workers who willingly enter Malaysia in search of economic opportunities subsequently encounter forced labour at the hands of employers or informal labour recruiters. These migrant workers are employed on plantations and construction sites, in textiles factories, and as domestic workers, and experience restrictions on movement, deceit and fraud in wages, passport confiscation and debt bondage. Domestic workers face difficult situations, including the non-payment of three to six months’ wages. The ITUC contended that there had been no criminal prosecutions of employers or labour recruiters who subject workers to conditions of forced labour. The Committee also noted the information from the International Organization for Migration (IOM) that, as of 2009, there were approximately 2.1 million migrant workers in Malaysia, and that migrant workers in the country may be subject to unpaid wages, passport retention, heavy workloads and confinement or isolation.

The Committee noted that, in June 2013, the Conference Committee on the Application of Standards urged the Government to take immediate and effective measures to ensure that perpetrators of trafficking were prosecuted and that sufficiently effective and dissuasive sanctions were imposed, as well as to ensure that 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. The Conference Committee also encouraged the Government to continue to negotiate and implement bilateral agreements with countries of origin, so that migrant workers are protected from abusive practices and conditions that amount to the exaction of forced labour.

The Committee also noted that, in its observations submitted in August 2013, the ITUC stated that the situation and treatment of migrant workers in the country had further deteriorated, exposing more migrant workers to abuse and forced labour. The ITUC indicated that the Government had not taken any measures to monitor the deception of migrant workers through the use of false documentation or contract substitution upon arrival. Additionally, the ITUC pointed out that, despite protections in law, migrant workers often work long hours and are subject to underpayment or late payment of wages. An estimated 90 per cent of employers retain the passports of migrant workers, and these workers are often afraid to report abuse or even request information concerning labour rights. Migrant workers who leave their employer due to abuse become de facto undocumented workers, subject to deportation. The ITUC stated further that the Government had criminalized undocumented migrant workers, identifying 500,000 individuals for deportation without adequately investigating their statuses as potential victims of forced labour. The ITUC urged the Government to abolish the labour outsourcing system, and to include domestic workers within the scope of the Employment Act (Minimum Standards).

In this regard, the Committee noted the information provided by the Government in its 2013 report on certain measures taken in order to protect migrant workers, including through the establishment of a Special Enforcement Team, consisting of 43 officers, to enhance enforcement activities to combat forced labour issues. However, the Committee noted with concern that such measures had not yielded tangible results with regard to detecting or punishing forced labour practices. It urged the Government to take measures to protect migrant workers from abusive practices and conditions that amount to the exaction of forced labour, and to ensure that victims of such abuses are able to exercise their rights in order to halt violations and obtain redress.

The Committee notes that, during the discussions on the application of the Convention at the Conference Committee, in June 2014, the Government indicated that it was conducting awareness raising nationwide on the Minimum Wages Order of 2012 in order to prevent labour exploitation of migrants. Moreover, in order to regulate the recruitment of migrant workers, the Government indicated that it has signed memoranda of understanding (MOU) with eight countries of origin (Bangladesh, China, India, Indonesia, Pakistan, Sri Lanka, Thailand and Viet Nam), as well as a separate MOU on the recruitment and placement of domestic workers with the Government of Indonesia. The Government also indicated that cooperation agreements were under negotiation with another four countries. While taking due note of this information, the Committee strongly encourages the Government to continue to take measures to ensure that migrant workers, including migrant domestic workers, are fully protected from abusive practices and conditions that amount to forced labour, and asks the Government to provide information in this regard. Recalling the central role of labour inspection in combating forced labour, the Committee requests the Government to provide information on the results achieved through the establishment of the Special Enforcement Team, as well as on any difficulties encountered by the Team and other law enforcement officials in identifying victims of forced labour, including trafficking in persons, and initiating legal proceedings. Finally, the Committee requests the Government to continue to provide information on the implementation of bilateral agreements with countries of origin, as well as any other cooperation measures undertaken in this regard, and the concrete results achieved.

2. Trafficking in persons. The Committee previously noted the statement from the ITUC in its observations submitted in 2011 that Malaysia is a destination, and to a lesser extent, a source and transit country for trafficking of men, women and children, particularly for forced prostitution and forced labour. The ITUC also alleged that prosecution for forced labour trafficking was rare. The Committee also noted the launching of the National Action Plan on Trafficking in Persons (2010–15), as well as information from the Government on the number of prosecutions and convictions related to trafficking, but not on the specific penalties applied to perpetrators. In the context of the discussions which took place at the Conference Committee in June 2013, it noted the concern expressed by several speakers regarding the magnitude of trafficking in persons in the country, as well as the absence of information on the specific penalties imposed on persons convicted under the Anti-Trafficking in Persons Act. In this regard, the Conference Committee urged the Government to reinforce its efforts to combat trafficking in persons and to strengthen the capacity of the relevant public authorities in this respect.

The Committee notes that, during the discussions on the application of the Convention at the Conference Committee in June 2014, the Government reaffirmed its commitment to addressing trafficking in persons and provided information on various measures taken to this end, including measures to strengthen the capacity of law enforcement personnel and awareness-raising initiatives, as well as measures to better protect victims of trafficking. The Government indicated that a total of 128 cases were brought to court under the Anti-Trafficking in Persons Act in 2013, resulting in five convictions, six acquittals, three cases being discharged, and a total of 650 victims rescued. By the time of the Conference, 114 cases were still pending before the courts. Additionally, the Government indicated that the penalties of imprisonment imposed in these cases would act as a deterrent to prospective perpetrators of trafficking in persons.

The Committee further notes that, while the various steps taken by the Government were acknowledged by the members of the Conference Committee, delegates stressed that further measures were necessary in order to develop and implement effective action that is commensurate with the magnitude of the trafficking phenomenon. In light of the above considerations, the Committee strongly encourages the Government to pursue its efforts to prevent, suppress and combat trafficking in persons, and to take the necessary measures to ensure that all persons who engage in trafficking and related offences are subject to thorough investigations and prosecutions. The Committee requests the Government to continue to provide information on the number of convictions and the specific penalties applied. The Committee also requests the Government to provide information on the concrete results achieved through the implementation of the National Action Plan on Trafficking in Persons (2010–15), both with regard to prevention and repression of trafficking, and the protection and rehabilitation of victims.

The Committee notes that both the Worker members and the Employer members at the Conference Committee, in June 2014, once again requested the Government to accept an ILO technical assistance mission to ensure the full and effective application of the Convention. In light of the above, the Committee hopes that the Government will give serious consideration to the possibility of availing itself of ILO technical assistance in the very near future in order to help it pursue its efforts to ensure the effective application of the Convention, so as to protect all workers, including migrant workers, from abusive practices that may amount to forced labour.

The Committee is raising other matters in a request addressed directly to the Government.