Effect given to the recommendations of the committee and the Governing Body - Report No 397, March 2022

Case No 2637 (Malaysia) - Complaint date: 10-APR-08 - Follow-up

Effect given to the recommendations of the committee and the Governing Body

1. 26. The Committee last examined this case, which was submitted in April 2008 and which concerns the denial of freedom of association rights to migrant workers, including domestic workers, in law and in practice, at its October 2020 meeting [see 392nd Report, paras 88–91]. On that occasion, the Committee expressed its firm expectation that the issue of freedom of association of domestic workers would be addressed during the ongoing review of the labour legislation and that, as a result thereof, measures would be taken to ensure that domestic workers, including contract workers, whether foreign or local, would all effectively enjoy the right to establish and join organizations of their own choosing, both in law and in practice, so as to be able to defend their occupational interests. The Committee also urged the Government to take the necessary steps to ensure the immediate registration of the Association of Migrant Domestic Workers, which was at the origin of the present case, so that they may fully exercise their freedom of association rights.
2. 27. The Government provides its observations in communications dated 31 January and 30 September 2021. It reiterates that the Trade Unions Act, 1959 does not deny the right of contract workers, including domestic workers employed under a contract of service, to join any trade union in line with their respective categories of employment, trade or industry. It adds that registration of trade unions is not confined to citizens, since the interpretation of section 2 does not connote any nationality to the term “workmen” but indicates that the Department of Trade Union Affairs has not received any application to register a trade union from domestic workers, whether foreign or local. The Government also states that although under section 28, migrant workers are not allowed to become office bearers, the Minister of Human Resources may approve such appointment if the circumstances so require. The Government provides an example of a duly registered teachers’ union, which includes non-citizen officers, and a union of plantation workers, which has a significant number of migrant workers as members. The Government further states that the review of the Trade Unions Act is ongoing to make the law more comprehensive so as to suit the needs of current developments in employment matters, in particular, to enable workers to form or join trade unions of their own choosing, without restrictions on the principle of similarity in employment, trade or industry.
3. 28. Concerning the registration of the Association of Migrant Domestic Workers, the Government indicates that the Association was advised to follow-up on their application status with the Registrar of Societies under the Society Act, 1966.
4. 29. The Committee takes due note of the information provided by the Government but regrets to observe that despite its repeated recommendations and the Government’s continued reliance on the ongoing labour law reform, this case has been pending for almost 14 years, the Government mainly reiterates previously provided information and little substantial progress seems to have been made towards ensuring the full application, in law and in practice, of freedom of association rights of domestic workers, both foreign and local, including contract workers. The Committee recalls that it has previously expressed appreciation at the various initiatives and activities undertaken by the Government, some in collaboration with the ILO and other stakeholders, to improve the working conditions and welfare of domestic workers, but has repeatedly observed that no concrete legislation or policy has been adopted to allow domestic workers to form and join organizations for the defence of their occupational interests.
5. 30. While noting in this regard the Government’s indication that the legislation does not deny the right of contract workers, including domestic workers employed under a contract of service, to join any trade union in line with their respective categories of employment, trade or industry, the Committee recalls that it had previously noted this information but observed that the organizations the Government referred to in this respect were associations of employment agencies and not workers’ organizations. Furthermore, the information provided by the Government does not seem to address the core of the issues raised in this case, in particular the alleged lack of trade union rights of domestic workers, including migrant workers, due to the fact that they generally work without an employment contract and are not recognized as workers under the labour legislation. The Committee also notes the Government’s indication in this regard that the Department of Trade Union Affairs has not received any application to register a trade union from domestic workers, whether foreign or local. Finally, in relation to the alleged restrictions on trade union rights due to the application of the similarity principle, whereby migrant workers supplied by labour contractors are not treated as employees of the workplace where they physically work and may thus not join the relevant trade unions, the Committee observes from the information provided by the Government that it acknowledges certain legislative limitations on the right to organize resulting from the principle of similarity in employment, trade or industry and affirms that the ongoing labour law reform aims at enabling workers to form or join trade unions of their own choosing, without such restrictions.
6. 31. In view of the above, recalling that domestic workers, like all other workers, should benefit from the right to freedom of association [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 407] and emphasizing that this includes both the right to join existing trade unions and the right to establish new trade unions to defend their occupational interests, the Committee expects the Government to take the necessary measures to ensure that the issues raised, with regard to freedom of association rights of domestic workers, will be comprehensively addressed during the ongoing labour law reform. The Committee expects that, as a result thereof, measures will be taken to ensure that domestic workers, whether foreign or local, including contract workers, will all effectively enjoy the right to establish and join organizations of their own choosing, in law and in practice, so as to be able to defend their occupational interests. The Committee encourages the Government to pursue its cooperation with the Office in this respect and requests it to provide concrete information on any developments in this regard.
7. 32. The Committee further notes, regarding trade union rights of migrant workers in general, that while the Government states that registration of trade unions does not require Malaysian nationality and points to trade unions with migrant workers as members and even union officers, it also indicates that migrant workers are not allowed to become office bearers without the approval of the Minister of Human Resources. Observing that this condition may hinder the right of trade unions to freely choose their representatives, the Committee wishes to recall that legislation should be made flexible so as to permit the organizations to elect their leaders freely and without hindrance, and to permit foreign workers access to trade union posts, at least after a reasonable period of residence in the host country [see Compilation, para. 623]. Noting that the Committee of Experts on the Application of Conventions and Recommendations (Committee of Experts) is examining this matter within the framework of the application of Convention No. 98, the Committee invites the Government to provide information on any legislative development in this regard to the Committee of Experts, to which it refers this legislative aspect of the case.
8. 33. Finally, as regards the registration of the Association of Migrant Domestic Workers, the Committee notes that the Government advised the Association to follow-up on its registration under the Society Act but does not provide further details on this matter. In these circumstances, the Committee requests the Government to keep it informed of the registration status of the Association of Migrant Domestic Workers and invites the complainant to engage with the Association so as to ensure that, if it so wishes, it takes the necessary administrative steps to achieve registration under the relevant national legislation.