Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Convention (n° 138) sur l'âge minimum, 1973 - Malaisie (Ratification: 1997)

Article 2, paragraph 1, of the Convention. Minimum age for admission to employment or work. The Committee had previously noted that the provisions of the Children and Young Persons (Employment) Act of 1966 (CYP Act), with regard to the minimum age for employment or work, were not in conformity with the age specified by the Government when ratifying the Convention. Indeed, although the Government, at the time of ratifying the Convention, declared 15 years as the minimum age for admission to employment, section 2(1) of the CYP Act provides that no “child” – who is a person under 14 years of age, according to section 1(A) – shall be engaged in any employment. The Committee had also noted the Government’s information that the CYP Act does not outlaw child labour, but rather governs and protects children who work. It had further noted the Government’s information that a tripartite committee would review the labour legislation, taking into consideration the possibility of increasing the minimum age for admission to employment. The Committee had recalled that, by virtue of Article 2(1) of the Convention, no one under the age specified by the Government, when ratifying the Convention, shall be admitted to employment or work in any occupation.

The Committee notes that, according to a Government representative of Malaysia at the Conference Committee on the Application of Standards at the 98th Session of the International Labour Conference in June 2009, the Government would set up a tripartite technical committee composed of employers’ organizations, workers’ organizations, government agencies and other relevant agencies. The tripartite technical committee is scheduled to meet in December 2009 to, among other things, review the CYP Act and give consideration to raising the minimum age for admission to employment or work from 14 to 15 years. Indeed, the Government indicates in its report that it is making a serious effort to raise the minimum age for employment or work in order to comply with the Convention. However, the Committee expresses its concern that, as the Conference Committee on the Application of Standards noted, while the Government had reviewed a series of labour laws to be tabled in Parliament in 2009, the Government had postponed the review of the CYP Act because it felt that child labour and abuses related to it were not critical or alarming in Malaysia. Noting once again that the Government has referred to the legislative review of the CYP Act for a number of years, the Committee strongly urges the Government to take the necessary measures to ensure that the tripartite technical committee seriously considers raising the minimum age for admission to employment or work to 15 years, as specified by the Government at the time of ratification, and that the relevant amendments are adopted as soon as possible. It requests the Government to provide information on the progress made in this regard with its next report.

Article 3, paragraphs 1 and 2. Minimum age for admission to, and determination of, hazardous work. In its previous comments, the Committee had noted that the relevant legislation does not contain any provisions prohibiting young people under 18 years of age from being employed in types of work likely to jeopardize their health, safety or morals. It had noted the Government’s referral to two prohibitions provided for in the CYP Act for children and young people: (i) managing or being in close proximity to machinery; and (ii) working underground. The Committee had observed that section 2(5) of the CYP Act provides that no child or young person shall be, or required or permitted to be, engaged in any employment contrary to the provisions of the Factories and Machinery Act, 1967, or the Electricity Act, 1949, or in any employment requiring them to work underground. It had noted, however, that section 1A(1) of the CYP Act defines a “child” as being any person who has not completed their fourteenth year of age, and a “young person” as being any person who has not completed their sixteenth year of age. The Committee had reminded the Government that, by virtue of Article 3(1) of the Convention, the minimum age for hazardous work shall not be less than 18 years. The Committee had also reminded the Government that, by virtue of Article 3(2) of the Convention, the types of hazardous work to which paragraph 1 of this Article applies, shall be determined by national laws or by the competent authority after consultations with the organizations of employers and workers concerned.

Referring to conclusions made by the Conference Committee on the Application of Standards, the Committee notes that the Government indicated that it would make the necessary recommendations to the tripartite technical committee so as to ensure that no one under the age of 18 years is authorized to perform hazardous work and that those hazardous types of work are determined in national legislation. The Committee also notes the Government’s information in its report that a proposal to include new provisions in the CYP Act to specify and determine the types of hazardous work and to prohibit the employment or work of persons under 18 years of age in these types of work is currently being reviewed by the Department of Labour. The Committee strongly urges the Government to take the necessary measures to ensure that the tripartite technical committee seriously considers the prohibition of the employment or work of persons under 18 years of age, in accordance with Article 3(1). Moreover, it firmly hopes that the determination of types of hazardous work to be prohibited to people below 18 years of age will be reviewed and adopted by the Department of Labour after consultation with the organizations of employers and workers concerned, in accordance with Article 3(2) of the Convention. It urges the Government to take the necessary measures to ensure that the relevant legislation is adopted as soon as possible and requests it to provide information on the progress made in this regard in its next report.

Article 3, paragraph 3. Admission to hazardous work from 16 years. The Committee had previously noted that certain provisions of the CYP Act allow young people of 16 years and above to perform types of hazardous work under certain conditions. The Committee reminded the Government that, under the terms of Article 3(3) of the Convention, national laws or regulations may, after consultation with the organizations of employers and workers concerned, authorize the performance of types of hazardous work by young people between 16 and 18 years of age, on condition that the health, safety and morals of the young people concerned are fully protected and that they have received adequate specific instruction or vocational training in the relevant branch of activity.

The Committee notes that the Government representative at the Conference Committee on the Application of Standards indicated that the Government is aware that young people between 16 and 18 years of age are only allowed to perform hazardous work if authorized in accordance with the requirements of Article 3(3) of the Convention. The Government representative explained that the tripartite technical committee would review and take action on that recommendation. The Committee also notes the Government’s information that the Department of Occupational Safety and Health is reviewing the Factories and Machinery Act, 1967, to raise the minimum age to perform hazardous work in occupations falling within the scope of that Act from 16 to 18 years of age. The Committee urges the Government to take the necessary measures to ensure that the activities of the tripartite technical committee lead to the adoption of national legislation authorizing the performance of types of hazardous work done by young people between 16 and 18 years of age only in accordance with the requirements of Article 3(3) of the Convention. It requests the Government to provide information on the progress made in this regard in its next report.

Article 7. Light work. The Committee had previously noted that section 2(2)(a) of the CYP Act allows people under 14 years of age to be employed in light work which is adequate to their capacity, in any undertaking carried on by their family. It had, however, noted that the legislation does not specify a minimum age for admission to light work. The Committee had reminded the Government that Article 7(1) of the Convention, provides for the possibility of admitting young people of 13 years of age to light work. The Committee had also recalled that, according to Article 7(3) the competent authority shall determine and prescribe the number of hours during which, and the conditions in which, such employment or work may be undertaken. With regard to the definition of light work, the Committee drew the Government’s attention to Paragraph 13(b) of the Minimum Age Recommendation, 1973 (No. 146) which states that, in giving effect to Article 7(3) of the Convention, special attention should be given to the strict limitation of hours spent at work in a day and in a week, and the prohibition of overtime, so as to allow enough time for education and training (including the time needed for homework), for rest during the day and for leisure activities. The Committee had shared the concern of the Committee on the Rights of the Child, in its concluding observations of 25 June 2007, that the provisions of the CYP Act concerning light work permit, among other things, employment involving light work without detailing the acceptable conditions of performing such work (CRC/C/MYS/CO/1, paragraph 90).

The Committee notes that the Government representative at the Conference Committee on the Application of Standards explained that, in the framework of the revision of the CYP Act, the tripartite technical committee would consider whether the competent authority could authorize persons between 13 and 15 years of age to perform light work. This would include a definition of light work and a limitation of working time. The Committee also notes the Government’s information, in its report, that it has agreed to define “light work activities” in the CYP Act so as to be in line with the Convention. The Committee urges the Government to take the necessary measures to ensure that the CYP Act is reviewed and amended in conformity with the requirements of the Convention on the following points: (i) that the minimum age of 13 years for light work be established by legislation; and (ii) that, in the absence of a definition of light work in the legislation, the competent authority should determine what is light work and should prescribe the number of hours during which, and the conditions in which, such employment or work may be undertaken. It requests the Government to provide information on the progress made in this regard in its next report.

Parts III and V of the report form. Application of the Convention in practice. The Committee had previously noted that the responsibility of the enforcement of the CYP Act rests solely with the Ministry of Human Resources. It had noted, however, that the Committee on the Rights of the Child expressed concern, in its concluding observations of 25 June 2007, that the enforcement of Convention No. 138 remains weak (CRC/C/MYS/CO/1, paragraph 90). It had also noted that the Committee on the Rights of the Child expressed its regret at the lack of a national data collection system and at the insufficient data on working children.

The Committee notes that the Government representative at the Conference Committee on the Application of Standards indicated that the Malaysia peninsula alone has 300 labour inspectors and every labour inspector carries out between 25 and 30 inspections per month. In 2008, the Department of Labour, under the Ministry of Human Resources, received a total of 30,084 complaints on various labour issues. The Government representative explained that all complaints and cases were scrutinized and that no cases relating to child labour occurred. However, the Committee notes that the Worker members at the Conference Committee on the Application of Standards indicated that, while many rights were respected in Malaysia, many issues remained, particularly with regard to children working in the oil palm plantations, in the agricultural sector, but also those working in towns and cities. The Worker members further noted that, according to the National Commission for the Protection of Children in Indonesia, cases of the forced labour of migrant workers and their children on plantations in Sabah involve an estimated 72,000 children. The Committee reminds the Government that, so that the Committee can assess whether a member State that has ratified the Convention has complied with its obligations, and particularly whether all the necessary measures have been taken to ensure the effective implementation and enforcement of the provisions giving effect to the Convention (Article 9(1)), it needs certain information, including statistical data, as requested in Part V of the report form. In light of the indication of the Government representative at the Conference Committee on the Application of Standards that Malaysia has one of the most effective labour inspectorates in the region, the Committee is of the view that Malaysia is in a position to ensure the effective enforcement of legislation giving effect to the Convention. The Committee once again strongly urges the Government to take the necessary measures to ensure that the provisions giving effect to the Convention are effectively enforced. The Committee also urges the Government to take the necessary measures to ensure that sufficient data on the situation of working children in Malaysia is available, in accordance with the Convention. It requests the Government to provide information on the progress made in this regard and once again asks the Government to provide information on the application of the Convention in practice including, for example, statistics on the employment of children and young people and extracts from the reports of inspection services, as soon as this information becomes available.

The Committee also strongly urges the Government to redouble its efforts and take the necessary measures to ensure that, during its review of the CYP Act by the tripartite technical committee set up for this purpose, due consideration is given to the Committee’s detailed comments on the discrepancies between national legislation and the Convention, and amendments are made in this regard. The Committee once again requests the Government to provide information on any progress made in the review of the CYP Act in its next report.

Finally, in response to the Government’s request for technical assistance from the Office, the Committee requests the Office to take the necessary measures to respond positively.