Observación (CEACR) - Adopción: 2012, Publicación: 102ª reunión CIT (2013)

Convenio sobre el trabajo forzoso, 1930 (núm. 29) - Malasia (Ratificación : 1957)
Protocolo de 2014 relativo al Convenio sobre el trabajo forzoso, 1930 - Malasia (Ratificación : 2022)

The Committee notes the communication from the International Trade Union Confederation (ITUC) dated 31 August 2011, as well as the Government’s reports dated 15 September 2011 and 8 November 2012.

Articles 1(1), 2(1) and 25 of the Convention. 1. Trafficking in persons. The Committee previously noted the adoption of the Anti-Trafficking in Persons Act, 2007 which, pursuant to sections 12–15, prohibits trafficking in persons and provides for a penalty of imprisonment of up to 20 years. The Committee requested information on the application of the Act in practice.

The Committee notes the ITUC’s statement that Malaysia is a destination, and to a lesser extent, a source and transit country for men, women and children subject to trafficking in persons, particularly for forced prostitution and forced labour. The ITUC alleges that prosecution for forced labour trafficking is rare at best, indicating that several NGO’s had reported potential labour trafficking cases to the Government, but no arrests or investigations were reported.

The Committee notes the statistical information provided by the Government concerning the application of the Anti-Trafficking in Persons Act. The Government indicates that, as of May 2011, 226 persons had been charged with the offence of trafficking in persons (pursuant to section 12 of the Act), and 98 persons had been charged with trafficking in persons by means of threat or force (pursuant to section 13 of the Act). The Committee also notes the Government’s indication that, with regard to trafficking in persons, there have been 355 cases investigated and 339 persons charged, with 253 cases pending trial, 13 persons discharged and 33 persons convicted, although the Committee observes an absence of information on the specific penalties applied to those convicted. The Government further indicates that 844 trafficking victims were issued protection orders (provided to trafficking victims in need of protection, pursuant to section 51 of the Act), and 2,289 persons were issued interim protection orders of 14 days (issued by a magistrate, pursuant to section 44 of the Act, while an investigation takes place). The Committee further notes the information in the Government’s report that the National Action Plan on Trafficking in Persons (2010–15) was launched on 30 March 2010. This National Action Plan is composed of nine main goals, including improving the relevant legal framework; implementing integrated action among enforcement agencies; providing victims with protection and rehabilitation services that conform with international standards; combating labour trafficking; and providing training to personnel involved in implementing the Anti-Trafficking in Persons Act. The Committee urges the Government to pursue its efforts to combat trafficking in persons, including within the framework of the National Action Plan on Trafficking in Persons (2010–15), and to provide information on the specific measures taken in this regard, as well as on the results achieved. It requests the Government to continue to provide information on the application of the Anti-Trafficking in Persons Act in practice, including the number of investigations, prosecutions and convictions. Moreover, recalling that Article 25 of the Convention provides that the illegal exaction of forced or compulsory labour shall be punishable by penalties that are really adequate and strictly enforced, the Committee requests the Government to provide information on the specific penalties imposed on persons convicted under the Anti-Trafficking in Persons Act.

2. Vulnerable situation of migrant workers with regard to the exaction of forced labour. The Committee notes the statement in the ITUC’s communication that some workers who willingly enter Malaysia in search of economic opportunities subsequently encounter forced labour at the hands of employers or informal labour recruiters, including workers from Indonesia, Nepal, India, Thailand, China, the Philippines, Cambodia, Bangladesh, Pakistan and Viet Nam. The ITUC indicates that these migrant workers are employed on plantations and construction sites, in textiles factories, and as domestic workers, and experience restrictions on movement, deceit and fraud in wages, passport confiscation and debt bondage. Regarding domestic workers, the ITUC indicates that conditions for these workers are particularly troubling, and that some domestic workers are not paid for three to six months. Moreover, the ITUC alleges that the Memorandum of Understanding (MoU) between Malaysia and Indonesia covering the employment of Indonesian domestic workers explicitly allows for the confiscation of workers’ passports. The ITUC further alleges that the Government has failed to report any criminal prosecutions of employers who subject workers to conditions of forced labour or labour recruiters who use deceptive practices and debt bondage to compel migrant workers into involuntary servitude.

The Committee notes the Government’s indication that, in May 2012, it conducted a training for labour inspectors, in collaboration with the ILO Tripartite Action to Protect Migrant Workers from Labour Exploitation Project (the ILO TRIANGLE Project). The Committee also notes the information from the International Organization on Migration (IOM) in a document entitled “Labour Migration from Indonesia” that in June 2009, the Government of Indonesia enacted a moratorium on placing domestic workers in Malaysia. However, this moratorium was lifted following the signature of a new MoU in May 2011 between the Governments of Indonesia and Malaysia (superseding the prior MoU of 2006). This MoU stipulates that Indonesian domestic workers have the right to retain their passports while in Malaysia, shall be entitled to one rest day a week and shall have their wages commensurate with the market. The Committee further notes the information from the IOM, that as of 2009, there were approximately 2.1 million migrant workers in Malaysia. This report states that official estimates indicate that there are approximately 700,000 irregular migrant workers in the country, although other estimates are much higher. This report further indicates that migrant workers in Malaysia may be subject to unpaid wages, passport retention, heavy workloads and confinement or isolation. In addition, the Committee notes that in October 2011, the Government of Cambodia signed a suspension on sending Cambodian domestic workers to Malaysia.

The Committee recalls the importance of taking effective action to ensure that the system of the employment of migrant workers does not place the workers concerned in a situation of increased vulnerability, particularly where they are subjected to abusive employer practices, such as retention of passports, non payment of wages, deprivation of liberty and physical and sexual abuse. Such practices might cause their employment to be transformed into situations that could amount to forced labour. The Committee therefore urges the Government to take the necessary measures to ensure that migrant workers, without distinction of nationality or origin, are fully protected from abusive practices and conditions that amount to the exaction of forced labour. The Committee requests the Government to provide information in its next report on measures adopted specifically tailored to the difficult circumstances faced by migrant workers, including measures to prevent and respond to cases of abuse of migrant workers, as well as to ensure that sufficiently effective and dissuasive penalties are applied to persons who subject these workers to conditions of forced labour. The Committee also requests the Government to indicate, in its next report, whether there are plans to include guarantees similar to those contained in the MoU with the Government of Indonesia in bilateral agreements with other countries, as well as information on the implementation of such agreements in practice.

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