Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 6(1)(b) of the Convention. Equality of treatment with respect to social security. For over ten years, the Committee, as well as the Conference Committee on the Application of Standards, have been pursuing a dialogue with the Government regarding differences in treatment between nationals and foreign workers with respect to payment of social security benefits. The Committee had noted that, as of 1 April 1993, foreign workers in the private sector were no longer covered by the Employees’ Social Security Act, 1969 (SOCSO), which provided for periodical payments to victims of industrial accidents and their dependants. Instead they were transferred to the Workmen’s Compensation Scheme (WCS) which only guarantees the payment of a lump sum. The Committee had considered that this change was not in conformity with Article 6(1)(b) of the Convention. A review of the two schemes had also shown that the level of benefits in the case of industrial accident provided under the Employees’ Social Security Scheme (ESS) was substantially higher than that provided under the WCS.

The Committee recalls that foreign workers permanently residing in Malaysia (Sabah) continue to be covered by the ESS, while foreign workers working in the country for a period of up to five years are covered only by the WCS. The Committee notes the detailed comparison provided by the Government of the benefits awarded according to each system in identical circumstances. The comparison shows, however, that the level of benefits in the case of industrial accident provided under the WCS is substantially lower than that provided under the SOCSO. Moreover, the Committee notes that some other differences exist between temporary foreign workers and foreign workers permanently residing in the country and nationals in respect of, for example, the invalidity pension scheme and survivors’ pension rehabilitation, as well as accidents outside work. The Committee further notes that the Government maintains its position that the system is reliable and suitable to the needs of the workforce of the country. The Committee notes from the UNDP–Sabah development statistics that in 2005, 24.8 per cent of the population were non-citizens. The Committee understands that the percentage of foreign workers has been increasing ever since, and that many of them are working in manufacturing, plantation work, domestic work, construction, services and agriculture.

The Committee recalls that Article 6(1)(b) of the Convention applies to all foreign workers, both those with permanent and temporary residence status, who shall not be treated less favourably than nationals in respect of social security (that is to say, legal provision in respect of employment injury, maternity, sickness, invalidity, old age, death, unemployment and family responsibilities, and any other contingency which, according to national laws or regulations, is covered by a social security scheme). The Committee also recalls Article 10 of the Convention, providing that in cases where the number of migrants going from the territory of one Member to that of another is sufficiently large, the competent authorities shall, where necessary or desirable, enter into agreements for the purpose of regulating matters of common concern arising in connection with the application of the provisions of the Convention. With respect to industrial accidents, the Committee refers the Government to the comments made under the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19), with respect to Peninsular Malaysia and Sarawak. With respect to other social security benefits, and taking into account the large number of foreign workers concerned, the Committee hopes that the Government will consider making every effort to take special steps, including the conclusion of bilateral or multilateral agreements, to ensure that migrant workers do not receive treatment which is less favourable than that applied to nationals or foreign workers permanently residing in the country with respect to other social security benefits. Noting from the Government’s report for Sarawak and Peninsular Malaysia on Convention No. 19, that the Government is considering extending the Workmen’s Compensation Scheme to domestic workers, please indicate whether domestic workers are covered under the Workmen’s Compensation Scheme of Sabah.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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

[The Government is asked to reply in detail to the present comments in 2010.]