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

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

The Committee notes the observations made by the International Trade Union Confederation (ITUC) received on 19 September 2018. The Committee requests the Government to provide its comments in this respect.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 107th Session, May–June 2018)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards (CAS) in June 2018 concerning the application of the Convention. The Committee recalls that the discussion in the CAS has been based upon long-standing issues raised and comments made by the Committee, urging the Government to take the necessary measures with a view to re-establishing the principle of equal treatment between foreign and national workers in case of employment injury. The Committee observes that the CAS, in its conclusions, welcomed the Government’s stated commitment to ensuring the Convention’s requirement for equal treatment of migrant workers and national workers. The Committee observes that the CAS urged the Government to: (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 for reinstating the equality of treatment of migrant workers, in particular by extending the coverage of the Employees’ Social Security Scheme (ESS) to migrant workers in a form that is effective; (iii) engage in genuine consultations 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; and (v) take necessary legal and practical measures to ensure that migrant workers have access to medical care in the case of workplace injury. The CAS called on the Government to accept an ILO direct contacts mission with a view to implementing these recommendations and to develop mechanisms for overcoming the practical issues affecting the implementation of the domestic social security scheme to migrant workers. The Committee recalls that, in its previous comments, it has repeatedly drawn the attention of the Government to the fact that, since 1993, the national legislation provided for foreign workers employed in Malaysia for up to five years, to be transferred from the ESS, which provides for periodical payments to victims of industrial accidents, to the Workmen’s Compensation Scheme (WCS), which guarantees only a lump-sum payment of a significantly lower amount. The Committee notes that in its reply the Government states that it is taking serious efforts to shift the protection of foreign workers from the WCS to the ESS to adhere to the principle of equal treatment for workers. The Committee notes the Government states it has agreed to extend the ESS, which will be under the Social Security Organization (SOCSO), to foreign workers. To this purpose, a transition period is envisaged to ensure the smooth extension, in order to to establish implementation mechanisms, databases, roadmaps and engagement sessions with stakeholders and social partners. The Committee notes the Government’s indication, that the transition period is planned to last, at a maximum, for three years, due to three main factors, which are the following: (i) the SOCSO has just been recently tasked with the implementation of Employment Insurance System, which needs certain time for the funds to be at a sustainable stage, and to ensure the smooth operation of administrative matters related to Employment Insurance System. In addition, the existing Social Security Act 1969 will need to undergo certain amendments in its provision; (ii) existing contractual obligation with the insurance panels and system provider of the e-compensation scheme; and (iii) providing employers with ample time to adjust to the changes that will occur with the shifting from the WCS to the ESS. The Committee welcomes the statement that the Government stands ready to take immediate action, including further deliberation and engagement with social partners from trade unions and employers’ federation. The Committee welcomes the intention of the Government to seek technical assistance from the ILO. The Committee welcomes the Government has accepted the direct contacts mission which will take place in 2019. The Committee firmly hopes that the Government will take advantage of the direct contacts mission with a view to implementing the conclusions by the CAS as well as its long-standing requests, so as to guarantee to foreign workers the fundamental right to equality of treatment with national workers in case of employment injury.

[The Government is asked to reply in full to the present comments in 2019.]