Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19) - Malaysia - Peninsular (Ratification: 1957)

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee notes with concern that the Government’s detailed report has not been received in spite of an express request to this effect and the discussion on the application of the Convention in Peninsular Malaysia and Sarawak by the Committee on the Application of Standards (CAS) of the International Labour Conference (ILC) in June 2017. The Committee recalls that the CAS discussion was based on the long-standing comments made by the Committee of Experts urging the Government to take the necessary measures with a view to re establishing, both in law and in practice, the principle of equal treatment between foreign and national workers in case of employment injury. In these successive comments, the Committee has continuously recalled that, since 1 April 1993, the national legislation provided for foreign workers, employed in Malaysia for up to five years, to be transferred from the Employees’ Social Security Scheme (ESS), which provided for periodical payments to victims of industrial accidents, to the Workmen’s Compensation Scheme (WCS), which guaranteed only a lump-sum payment of a significantly lower amount. The Committee also recalls that, in June 2011, the CAS had already urged the Government to take immediate steps in order to bring national law and practice into conformity with Article 1 of the Convention, to respect the system of automatic reciprocity instituted by the Convention between the ratifying countries, and to avail itself of the technical assistance of the ILO to resolve administrative difficulties by concluding special arrangements with labour-supplying countries in accordance with Articles 1(2) and 4 of the Convention. In reply, the Government had indicated that a technical committee within the Ministry of Human Resources, including all stakeholders, was considering the various options with a view to bringing the national legislation in line with the requirements of the Convention.

The Committee notes that, at the 2017 session of the ILC, the CAS once again called upon the Government to take immediate, pragmatic and effective steps to ensure that the Convention’s requirement for equal treatment of migrant workers and national workers was met and to expedite its efforts to this effect, as the need for real progress is becoming increasingly urgent. Specifically, the CAS called upon the Government to, without delay: (i) take steps to develop and communicate its policy for governing the recruitment and treatment of migrant workers; (ii) take immediate steps to conclude its work on the means of reinstating the equality of treatment of migrant workers, in particular by extending the coverage of the ESS to migrant workers in a form that is effective; (iii) work with employers’ and workers’ organizations to develop laws and regulations that ensure the removal of discriminatory practices between migrant and national workers, in particular in relation to workplace injury; (iv) adopt special arrangements with other ratifying member States to overcome the administrative difficulties of monitoring the payment of compensation abroad; (v) take necessary legal and practical measures to ensure that migrant workers have access to medical care in the case of workplace injury without fear of arrest and retaliation; and (vi) avail itself of the technical assistance of the ILO with a view to implementing these recommendations and to develop mechanisms for overcoming the practical issues affecting implementation of the domestic social security scheme to migrant workers.

In view of the urgency of the persistent situation where foreign workers employed in Malaysia for up to five years, who become victims of industrial injuries, are denied their fundamental right to equality of treatment with national workers and thus deprived of, inter alia, lifelong pensions in case of permanent disability, the Committee fully endorses the CAS conclusions and urges the Government to conform with its international obligations by taking the required measures in an effective and expeditious manner.