Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Labour Inspection Convention, 1947 (No. 81) - Malaysia (Ratification: 1963)

Other comments on C081

Observation

Direct Request

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With reference to its observation, the Committee would also like to raise the following points.

Articles 2(1), 3(1), 5(a), 16, 17 and 23 of the Convention. Labour inspection and child labour. In relation to the measures taken or envisaged with a view to the active participation of labour inspectors in combating child labour, the Government refers to the 2011 amendments to the Children and Young Persons (Employment) Act, 1966, which the Committee noted in its observations under the Minimum Age Convention, 1973 (No. 138), and the Worst Forms of Child Labour Convention, 1999 (No. 182) in 2011. However, the Committee also notes that the Government indicates once again that no violations of the legal provisions relating to young persons and women were detected by labour inspectors. The Committee is therefore bound to observe that there does not seem to be any progress in relation to the enforcement of the national legal provisions relating to the employment of children and young persons that are enforceable by labour inspectors. The Committee once again asks the Government to describe the measures taken by the labour inspectorate with a view to combating child labour. Please provide information on the progress made in this regard and the number of infringements reported, investigations made, prosecutions initiated, convictions pronounced, sanctions applied, remedies provided, etc.

Article 7. Training of labour inspectors. The Committee notes the information in the annual report of the Department of Occupational Safety and Health (DOSH) that 195 training courses were organized in 2010, with nearly 75 per cent of the Department’s workforce participating. Close cooperation also continued with the Japan International Cooperation Agency (JICA) enabling 40 of the Department’s officers to undergo comprehensive training in selected occupational safety and health (OSH) areas in Japan. Furthermore, it notes from the annual report of the Labour Department for Sarawak, that 60 officers were trained in the area of labour legislation in 2010, including legislation relating to part-time workers. The Committee would be grateful if the Government would provide detailed information on the training courses provided for labour inspectors performing their duties within the Labour Departments of Sarawak, Sabah and Peninsular Malaysia, as well as the DOSH, including the frequency, duration, number of participants and subjects covered.

Articles 3(2), 8 and 10. Number of labour inspectors throughout the structures of the labour inspectorate, and the functions entrusted to them. The Committee notes that the Government has not provided comprehensive information on the number of labour inspectors in its report, nor is such information contained in the annual reports for 2010 of the Labour Departments for Peninsular Malaysia, Sabah and Sarawak and DOSH. It notes that there is a discrepancy between the number of 574 OSH inspectors in 2008, according to information provided by the Government, and the information in the 2010 DOSH annual report, according to which the number of factory and machinery inspectors as of 31 December 2010 was 341. The Committee similarly notes that, according to the 2010 Department of Labour Annual Report, there were 295 labour inspectors in Peninsular Malaysia, significantly less than the 322 labour inspectors accounted for by the Government in its previous report to the Committee.

Furthermore, the Committee notes that throughout the Government’s most recent report, as well as in previous reports and in various agencies’ annual reports, which are available on the Internet, the terms “labour inspector”, “officer” and “technical staff” are used interchangeably in order to refer to officials working under the auspices of the Department of Labour or of DOSH, or other officials, such as “administrative officers”, or “agricultural staff”. It is not clear from the information contained in the 2010 annual reports of the above Departments which categories of staff are entrusted with the various functions mentioned in the reports including, amongst others, employment services, the settlement of labour complaints and disputes, the issuance of private employment agency licences, various categories of work permits including work permits for non-residents, the settlement of compensation claims, inspections of certified machinery, such as steam boilers, unfired pressure vessels, lifts and elevators, etc.

The Committee wishes to refer to paragraph 69 of its General Survey 2006 on Labour Inspection where it underlined that the primary duties of inspectors are complex and require time and resources and that the Convention therefore stipulates in Article 3(2) that any further duties which are entrusted to labour inspectors should not be such as to interfere with the effective discharge of their primary duties (enforcement and advice).

Given the apparent ambiguity of the terms “labour inspector,” “labour officer” and “technical staff,” the Committee would be grateful if the Government would clarify the meaning and function of these terms and the functions associated with them.

The Committee would also be grateful if the Government would provide up-to-date information on the total number and distribution of labour inspection officers in Peninsular Malaysia, Sabah and Sarawak, deployed under both the DOSH and the Department of Labour. In so doing, the Government is requested to disaggregate the number of inspectors by sex.

Article 12. Powers of labour inspectors. The Committee notes that according to the Government, the Labour Ordinance Sabah (Cap. 67) and the Labour Ordinance Sarawak (Cap. 76), do not reiterate the provisions contained in the Employment Act 1955 (Act 265) regarding the possibility for labour inspectors to notify employers of their presence (unless they have reasonable grounds to believe that such notification might be prejudicial to the performance of their duties) as called for in Article 12(2) of the Convention; however, the Government refers to the technical standard MS ISO 9001:2008 which according to the Government complements the Ordinances and contains a relevant provision. The Committee notes that the referenced document contains standards for quality management systems, and no provisions on the powers of labour inspectors when assuming their primary functions under Article 3(1) of the Convention. The Committee therefore asks the Government to take measures to harmonize the Labour Ordinance Sabah (Cap. 67) and the Labour Ordinance Sarawak (Cap. 76) with the Employment Act 1955 (Act 265), in conformity with Article 12(2) of the Convention.

Article 15(c). Confidentiality of complaints. The Committee notes that neither the Employment Act, the Occupational Safety and Health Act (No. 514), the Factory and Machinery Act, nor the Sabah and Sarawak Ordinances, contain provisions regarding the requirement to treat as absolutely confidential the source of any complaint bringing to their notice a defect or breach of legal provisions and to give no intimation to the employer or his representative that a visit of inspection was made in consequence of the receipt of such complaint. The Committee asks the Government to indicate any legal texts establishing a duty of confidentiality of complaints or, in the absence of relevant provisions, to take the necessary measures to bring the national legislation into conformity with Article 15(c) of the Convention. The Committee would be grateful if the Government would keep the ILO informed in this regard and also provide information on how the confidentiality of complaints and their sources are guaranteed in practice.

Article 13. Preventive measures in the area of OSH. The Committee notes from the annual report of the DOSH for 2010 that the sectors of construction and manufacturing account for the highest number of fatal accidents. The Committee requests the Government to provide information and data on the preventive action taken by the labour inspectorate in these sectors with a view to remedying defects observed in plant, lay-out or working methods which labour inspectors may have reasonable cause to believe constitute a threat to the health or safety of the workers including measures with immediate executory force in the event of imminent danger to the health or safety of the workers, as provided for in Article 13 of the Convention.

Article 14 of the Convention. Notification to the inspectorate of industrial accidents and cases of occupational disease. The Committee notes from the 2010 report of the DOSH that there is no information on the number of investigations relating to industrial accidents, despite an increase in the number of industrial accidents reported to the department (from 2,386 in 2009 to 2,534 in 2010). Moreover, it notes that in 2010 a total of 1,427 cases of occupational disease and poisoning were reported to the Occupational Health Division, compared with 791 cases in 2009, and that 663 cases were reported from the province of Selangor. However, only 663 cases were investigated.

In this regard, the Committee notes from the information in the annual report of the DOSH for 2010 that the DOSH plans to conduct more training to enhance the understanding of its officers of the relevant law to ensure effective investigation of complaints and industrial accidents.

The Committee would be grateful if the Government would describe in detail the procedure for the notification and registration of occupational accidents and cases of occupational disease under the regulations of 2004 on the notification of accidents, dangerous occurrences, occupational poisoning and cases of occupational disease, and to describe the manner in which the labour inspectorate is notified of such occurrences so as to investigate them and, among other things, take measures to prevent their recurrence.

The Government is also requested to continue to provide data on the application of these provisions in practice in all territorial structures of the DOSH (number of industrial accidents and cases of occupational disease reported to the DOSH, number of investigations in this regard, findings and follow-up measures, including the sanctions imposed).

Articles 16, 17(2), 18 and 21(e). Violations and penalties imposed. Cooperation with the justice system. The Committee notes that according to the information available on the DOSH website, there were 28 prosecutions for OSH violations throughout Peninsular Malaysia, Sabah and Sarawak in 2011, 23 prosecutions for OSH violations in 2010, and 23 prosecutions for OSH violations in 2009. It considers that these figures do not appear to be in conformity with the figures reported in the 2010 DOSH annual report, which state that in 2010, there were 41 prosecutions under the Occupational Safety and Health Act, 1994, and subsidiary legislation, and 150 prosecutions under the Factory and Machine Act 1967 and subsidiary legislation. Moreover, neither the DOSH website nor the 2010 annual report appear to give a definitive account of how many workplaces were investigated under the auspices of DOSH during the reporting period. The Committee would be grateful if the Government would provide up-to-date information on the total number of workplaces inspected in Peninsular Malaysia, Sabah and Sarawak and the legal proceedings initiated by labour inspectors (number of referrals to the judicial authorities, number of cases dealt with by the courts, type of penalties imposed, legal provisions concerned, etc.).