Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Migration for Employment Convention (Revised), 1949 (No. 97) - Malaysia - Sabah (Ratification: 1964)

Other comments on C097

Observation

Direct Request

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Article 1 of the Convention. Information on migration flows. The Committee notes from the Government’s report that as of 1 April 2012 the number of migrant workers employed in Sabah was 95,815 (84,497 Indonesians (58,109 men and 26,388 women) and 11,318 Filipinos (8,648 men and 2,670 women)). The large majority of migrant workers were employed in agriculture (65,662), followed by domestic service (7,897), manufacturing (6,720), construction (5,742) and social and personal services (4,412). The Committee asks the Government to continue to provide statistical information, disaggregated by sex and nationality, on the number of migrant workers employed in Sabah, and an indication of the sectors in which they are employed.

Articles 2 and 4. Information and assistance to migrant workers. The Committee notes the Government’s statement that all manual migrant workers with the exception of domestic workers whose wages do not exceed 2,500 Malaysian ringgit (MYR) a month are covered by the Labour (Contents of Contract) (Sabah) Rules 2008. The Government further indicates that the Labour Department also carried out normal statutory inspections to places of employment throughout Sabah to enforce the said contracts and Rules and to educate the workers about their rights and obligations set out in the national legislation, but no further information was provided on the specific activities and their outcome in this regard. The Committee requests the Government to provide further information on the practical measures taken by the Labour Department to inform migrant workers about the 2008 Rules, as well as their rights and obligations set out in the national legislation, and the results achieved. Please also provide information on the specific services and assistance, including accurate information on the living and working conditions and contracts of employment, given to migrant domestic workers.

Article 3. Misleading propaganda. The Committee recalls its previous comments in which it underlined the importance of measures to address misleading propaganda as a means to combat irregular migration, including trafficking in persons. The Committee notes the Government’s statement that the Labour Department (Sabah) has not received any complaints from migrant workers regarding abuses or deception when coming into Sabah. Noting further the Government’s confirmation that the Labour Department is taking the necessary steps and preventative measures to ensure that migrant workers coming into Sabah are not subjected to erroneous information, either by the employers or the recruitment agencies regarding living and working conditions, the Committee requests the Government to provide full information on the specific measures taken in this regard.

Article 6. Equality of treatment. The Committee notes that the Government repeats its previous statement that the Labour Department has not received complaints regarding discrimination in respect of terms and conditions of employment from migrant workers pursuant to section 118B of the Labour Ordinance (non-discrimination in respect of conditions of employment), but that complaints regarding cases of discrimination would be brought to the attention of the relevant authority. The Government further states that the Labour Department does not keep data on the number and nature of complaints submitted by non resident employees concerning discrimination with respect to conditions of work, and that data collected on cases of non-compliance include both foreigners and locals. The Government also reiterates in a general manner that the Labour Department organizes briefings for employers and employees to raise awareness of the provisions of the Labour Ordinance. The Committee draws the Government’s attention to the importance of effective dispute resolution mechanisms and accessible and speedy complaints procedures, and considers that where no cases or complaints, or very few, are being lodged this may indicate a lack of such mechanisms and procedures, a lack of awareness of rights, a lack of confidence in the existing procedures or fear of reprisal. The lack of complaints could also indicate that the system of recording violations is insufficiently developed. The Committee stresses the need to collect and publish information on the number and types of cases of non-compliance with the relevant laws and regulations, particularly concerning the matters enumerated in Article 6(1)(a) to (d) of the Convention, detected in sectors where most migrant workers are employed, as a means to raising awareness of the legislation and the avenues of dispute resolution, and in order to examine the effectiveness of the procedures and mechanisms for redress. The Committee therefore requests the Government to make every effort to collect and publish information on cases of non compliance brought by foreign workers as well as on any cases handed down by the courts and any violations detected by the bodies entrusted with monitoring the relevant legislation, the remedies provided and sanctions imposed. It encourages the Government to examine whether the existing dispute resolution mechanisms available to migrant workers are adequate and effective to address issues of less favourable treatment without fear of reprisals, and provide information on any steps taken in this regard. Please also indicate the specific measures taken or envisaged by the Labour Department to raise awareness among migrant workers about the principles and rights enshrined in the Convention, and in the relevant laws and regulations. Please continue to seek and provide information on the number and nature of complaints submitted by non resident employees pursuant to section 118B of the Labour Ordinance (Sabah Cap. 67) concerning discrimination with respect to the matters enumerated in Article 6(1)(a)(i) of the Convention, as well as the sanctions imposed and remedies provided.

Manual workers and domestic workers. Further to its observation, the Committee notes from the statistics provided by the Government that 58,103 Indonesian and 8,526 Filipino male manual workers, and 19,359 Indonesian and 1,836 Filipino female manual workers, as well as six Indonesian and 28 Filipino male domestic workers, and 7,029 Indonesian and 834 Filipino female domestic workers receive wages which do not exceed MYR2,500 a month. The Committee further notes that the Minimum Wage Order 2012 provides for a monthly minimum wage of MYR800 for Sabah (section 4) but excludes domestic workers from its application (section 3). The Committee also notes the Government’s statement that there is no discrimination as manual and domestic migrant workers receive the same wages as nationals and are treated equally. The Committee asks the Government to provide information as follows:

(i) statistical data, disaggregated by nationality and sex, on the economic sectors in which Indonesian and Filipino manual workers as well as nationals whose wages do not exceed MYR2,500 are employed and the number of nationals employed as domestic worker;
(ii) the wage levels of Indonesian and Filipino workers as well as nationals in the different sectors of employment;
(iii) the reasons for excluding domestic workers from the Minimum Wage Order 2012; please provide copies of any rules made by the Minister, pursuant to section 130O(j), for the engagement, repatriation and conditions of work of domestic workers;
(iv) the specific measures taken to ensure that in practice Indonesian and Filipino manual workers and domestic workers, are not treated less favourably than nationals with respect to the matters enumerated in Article 6(1)(a) to (d) of the Convention.

[The Government is asked to reply in detail to the present comments in 2014.]