Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee notes with regret that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2015.

Repetition

Article 1 of the Convention. Information on migration flows. The Committee notes from the Government’s report that between January and July 2014, the number of migrant workers employed in Sabah was 100,112, among whom there were 60,856 male and 25,522 female Indonesian workers, and 8,841 male and 3,288 female Filipino workers. The large majority of migrant workers were employed in agriculture (73,891), followed by manufacturing (7,520), construction (6,494), domestic work (5,266) and social and personal services (2,959). The Committee requests 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 and 4. Information and assistance to migrant workers. The Committee notes the Government’s statement that all migrant workers are covered by the Labour (Contents of Contract) (Sabah) Rules 2008, including domestic workers regardless of their nationality and salary (below or beyond 2,500 Malaysian ringgit (MYR)). The Committee requests the Government to provide the text of the Labour (Contents of Contract) (Sabah) Rules 2008, and further information on the practical measures taken by the Labour Department to inform migrant workers about the 2008 Rules, as well as their rights and obligations set out in the national legislation, and the results achieved. Please also provide information on the specific services and assistance, including accurate information on the living and working conditions and contracts of employment, given to migrant domestic workers.

Article 3. Misleading propaganda. The Committee recalls the relevance of Article 3 for the protection of workers from misleading information stemming from intermediaries who may have an interest in encouraging migration in any form to take place and recognizes the pivotal role of information and knowledge in preventing irregular labour migration (see General Survey on migrant workers, 2016). In the absence of any further information in this regard, the Committee once again requests the Government to provide full information on the specific measures taken or envisaged to prevent migrant workers coming into Sabah to be subjected to erroneous information, including from private intermediaries.

Article 6. Equality of treatment. Regarding the effective enforcement of the principle of equal treatment, the Government reiterates 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 (non-discrimination in respect of conditions of employment). The Government further indicates that remedies are provided to both local and foreign domestic workers in a regular situation, thereby guaranteeing equal treatment in this regard; the Labour Department also organizes social dialogues to raise awareness about employers’ obligations and workers’ rights. The Committee notes that the Human Rights Commission of Malaysia (SUHAKAM) indicates in its 2013 Annual Report that its Sabah Office received 11 complaints from Malaysians and migrant workers relating to employment, including wages. In most cases, the Human Rights Commission sought assistance from the Labour Department to resolve complaints. The Committee recalls the importance of effective dispute resolution mechanisms and accessible and speedy complaints procedures. It considers that where no cases or complaints, or very few, are being lodged this may indicate a lack of such mechanisms and procedures, a lack of awareness of rights, a lack of confidence in the existing procedures or fear of reprisal. The Committee once again requests the Government to examine whether the existing dispute resolution mechanisms available to migrant workers are adequate and effective to address issues of less favourable treatment without fear of reprisals, and provide information on any steps taken in this regard. In this connection, please indicate whether migrant workers can obtain an extension of stay while their case is pending. The Committee also requests the Government to provide information on measures taken to raise awareness among migrant workers, including migrant domestic workers, about available dispute resolution mechanisms to address issues of less favourable treatment, and 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.

Domestic workers. The Committee notes that as of July 2014 there were a total of 169,043 foreign domestic workers, of which 117,584 nationals from Indonesia, 40,299 from the Philippines and 5,800 from Cambodia. The Committee notes that the Minimum Wage Order 2012 excludes domestic workers from its application (section 3), which, according to the Government, is because the cost structure for the recruitment of Indonesian domestic workers is covered by the Protocol to Amend the Memorandum of Understanding on the Recruitment and Placement of Indonesian Domestic Workers 2006. However, the Committee notes that according to Article 5.3 of the Protocol, the employer only has to pay a monthly wage “determined by the market forces taking into account the indicative range of wages to be agreed upon by the Parties”. Furthermore, the Government indicates that the wage of Filipino domestic workers is set by the market forces for which it is set at a minimum of MYR1,500 and above. The Committee notes that a draft agreement to send domestic workers from Cambodia to Malaysia is under negotiation. The Committee requests the Government to provide a copy of any bilateral agreement or arrangement relating to the protection of migrant workers, including domestic workers. Furthermore, the Committee asks the Government to provide information on the specific measures taken to ensure that Indonesian, Filipino and Cambodian domestic workers, are not treated less favourably than nationals with respect to remuneration, and that no discrimination exists among groups of migrant workers on the ground of nationality or sex. Please provide statistical data, disaggregated by sex and origin, on the number of foreign and national domestic workers and their corresponding earnings, specifying the payments in cash and in kind.