Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

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, 107th Session, June 2018)

In its previous comment, the Committee hoped that the Government would take advantage of the direct contacts mission requested by the Committee on the Application of Standards (CAS) with a view to implementing its conclusions as well as its long-standing requests, so as to guarantee to foreign workers the right to equality of treatment with national workers in case of employment injury, and requested a reply from the Government on the issue raised in its comments. The Committee welcomes that the direct contacts mission took place from 14 to 17 October 2019, and takes note of the findings and recommendations contained in its report.

The Committee recalls that the CAS, in June 2018, 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 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 Committee notes with satisfaction that the coverage of accident compensation for foreign workers under the Employees’ Social Security Act, 1969 (ESSA) is being implemented, as indicated by the Government in its report. In this regard, the Committee notes that, as of 1 January 2019, foreign workers’ protection in case of work-related injury has moved from the scope of the Foreign Workers’ Compensation Scheme under the Workmen’s Compensation (Foreign Workers’ Compensation Scheme) (Insurance) Order, 2005, to the Employees’ Social Security Scheme (ESSS), administered under the Employees’ Social Security Act, 1969 (Act 4) (ESSA, 1969). The Committee observes more particularly that, under this Act, foreign workers who suffer a work-related injury are now entitled to periodical payment for temporary disability and permanent disablement as a result of an employment injury, medical treatment, and constant attendance care for the workers with disabilities. Furthermore, the dependants of an insured foreign worker who dies as a result of a work-related injury are entitled to periodical payments for loss of support; and funeral benefits (sections 15 and 57, ESSA, 1969). The Committee further observes that these benefits are provided in the same manner and amount in respect of foreign workers and national workers, with the exception of the funeral grant, which is higher for foreign workers. The Committee further notes, from the direct contacts mission report, the importance that the authorities and social partners attach to tripartite consultation and social dialogue in this process. The Committee notes however the view of the Malaysian Trade Union Congress (MTUC) and the Malaysian Employers’ Federation (MEF) that the effectiveness of consultative and participatory processes could be improved to better benefit from their insights and support in the implementation of the legislative amendments, the adoption of a work plan, and effective follow-up.

In light of the above, the Committee requests the Government to ensure, through the appropriate mechanism, genuine, effective and meaningful social dialogue and a participatory process involving social partners in the implementation of the above-mentioned provisions, and to provide information on any measures taken to this effect. The Committee trusts that this dialogue will be framed by the issues addressed in the direct request. The Committee reminds the Government of the possibility to avail itself of the technical assistance of the Office in this regard.

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