Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Labour Clauses (Public Contracts) Convention, 1949 (No. 94) - Malaysia - Sabah (Ratification: 1964)

Article 2 of the Convention. Insertion of labour clauses in public contracts.  In its previous comments, the Committee requested the Government to take the necessary measures to ensure the full application of the Convention, both in law and in practice. The Government reports that, although section 121 of the Sabah Labour Ordinance is no longer in force, all public contracts under the Sabah State Government nevertheless contain a specific clause on labour. The Government further indicates that the standard form of contract to be signed by the public authority and the selected contractor is based on section 23 of the Act on the Employment of Workmen, which contains provisions on days and hours of working, maintenance of wage ledgers and timesheets, defaults in payment of wages, dismissal of workmen and requires compliance with relevant national labour legislation. The Committee notes that the standard form of contracts (available online) to which the Government refers, such as the PWD form 203, the PWD 203A, or the PWD FORM 203N (Revised 2007) are pre-prepared contracts that contain labour clauses and provide a basic framework for the rights, obligations and duties of the contracting parties for the public construction sector. It further notes that the insertion of labour clauses in the standard form of contracts is carried out in the absence of specific national legislation or regulations that call for their use in all public contracts. In this respect, the Committee recalls that Article 2 of the Convention provides for the inclusion of labour clauses in all public contracts covered by the scope of Article 1 – drawn up after consultation of the employers’ and workers’ organizations – ensuring to the workers concerned conditions of remuneration and other conditions of labour which are not less favourable than those established by national laws or regulations, collective agreements or arbitration awards for work of the same character in the same sector. The Committee invites the Government to consider the possibility of adopting specific measures (either through enactment of specific legislation or by means of administrative instructions or circulars) for extending the obligation to include the labour clauses currently in use for the construction sector to all public contracts to which the Convention applies (whether for construction works, manufacture of goods or supply of services). The Committee further requests the Government to indicate the manner in which it is ensured that labour clauses of the type specified in Article 2 of the Convention ensure to the workers of contractors or subcontractors payment of wages and other working conditions not less favourable than those established for work of the same character in the same area by collective agreement, arbitration award or national laws or regulations.

Application of the Convention in practice. Labour inspection.  The Committee requests the Government to provide information on the manner in which the Convention is applied, including statistics on the number of inspections conducted, the number and type of infractions detected and the sanctions applied.