Individual Case (CAS) - Discussion: 2014, Publication: 103rd ILC session (2014)



The Government provided the following written information.

The Anti-Trafficking Act 2007 was amended in 2010. The Act came into force on 15 November 2010. It is now known as the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007. The amendment was made so as to strengthen the regulatory framework to deal more effectively with the issues of human trafficking and smuggling of migrants in Malaysia. Interpretation of trafficking in persons and smuggling of migrants in accordance with the Act is as follows: “Trafficking in persons” is defined as all actions involved in acquiring or maintaining the labour or services of a person through coercion, for the purpose of exploitation. The profit in trafficking comes not from the movement of persons but from the sale of a trafficked person’s services or labour in the country of destination. “Smuggling of migrants” means arranging, facilitating or organizing, directly or indirectly, a person’s unlawful entry into or unlawful exit from any country of which the person is not a citizen or permanent resident. Virtually every country in the world is affected by this crime, whether as an origin, transit or destination country for smuggled migrants by profit-seeking criminals.

The amended Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 extends its coverage to the following: Section 15(a), to provide for a new offence. This amendment seeks to provide that a person who brings in transit a trafficked person through Malaysia by land, sea or air, or otherwise arranges or facilitates such act commits an offence. Section 17(a), to provide that the prosecution need not prove the movement or conveyance of the trafficked person to prove that the offence of trafficking in persons had occurred. The prosecution needs only to prove that the trafficked person was subject to exploitation. Part III(a). This new Part III(a) contains ten new sections, namely sections 26(a) to 26(j). The new Part III(a) addresses concerns that have arisen about the smuggling of migrants as a criminal activity distinct from legal or illegal activity on the part of the migrants themselves. The sections specifically criminalize the exploitation of migrants and the generation of illicit profits from the procurement of illegal entry or illegal residence of migrants. Section 41(a), to clarify that a smuggled migrant is only entitled to be protected under that Part if he was a trafficked person. Section 61(a), to provide for the admissibility of a deposition made by a trafficked person or a smuggled migrant who cannot be found during a proceeding in court. The deposition must have been made upon an oath before a session’s court judge or a magistrate if in Malaysia or a consular officer or a judicial officer if outside Malaysia.

The Council for Anti-Trafficking in Persons (MAPO) was established under the Anti-Trafficking in Persons Act 2007. As far as the amended Act is concerned, MAPO is now known as the Council for Anti-Trafficking in Persons and Anti-Smuggling of Migrants. The Council for Anti-Trafficking in Persons and Anti-Smuggling of Migrants is headed by the Ministry of Home Affairs Secretary-General. Five taskforces were established to support the council’s function. MAPO’s objective is to make Malaysia internationally accredited as being free of illegal activities in connection with human trafficking and smuggling of migrants. Hence, MAPO’s main function is to prevent and eradicate human trafficking and migrant smuggling crimes through comprehensive enforcement of the Act. MAPO’s other roles are as follows: Formulate and oversee the implementation of a national action plan on the prevention and suppression of trafficking in persons including the support and protection of trafficked persons. Make recommendations to the minister on all aspects of prevention and suppression of trafficking in persons. Monitor the immigration and emigration patterns in Malaysia for evidence of trafficking and to secure the prompt response of the relevant government agencies or bodies, and non-governmental organizations to problems on trafficking in persons brought to their attention. Coordinate in the formulation of policies and monitor its implementation on issues of trafficking in persons with relevant government agencies or bodies and non-governmental organizations. Formulate and coordinate measures to inform and educate the public, including potential trafficked persons, on the causes and consequences of trafficking in persons. Cooperate and coordinate with international bodies and other similar regional bodies or committees in relation to the problems and issues of trafficking in persons including support and protection of trafficked persons. Advise the government on the issues of trafficking in persons including developments at the international level against the act of trafficking in persons. Collect and collate the data and information, and authorize research, in relation to the prevention and suppression of trafficking in persons. Perform any other functions as directed by the minister for the proper implementation of the Act.

Apart from the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007, Malaysia has a comprehensive framework of laws and regulations to protect labourers, irrespective of whether local or foreign. In addition, there are nine laws and regulations, specifically, to address the issue of forced labour as follows: Employment Act 1955 which provides minimum protection to employees with regard to their terms and conditions of service consisting of working hours, wages, holidays, retrenchment benefits, etc. Workers Minimum Housing Standards and Amenities Act 1990 (Act 446) which prescribes the minimum standards of housing, to require employers to provide medical and social amenities for workers. Workmen’s Compensation Act 1952 (Act 273) which provides payment of compensation for injuries sustained in accidents during employment. Children and Young Persons (Employment) Act 1966 which provides regulations to protect children and young persons who are engaged in employment in terms of working hours, type of work, abuse, etc. Occupational Safety and Health 1994 which provides regulations to secure the safety, health and welfare of persons at work against risks to safety or health arising out of the activities of persons at work and providing industrial codes of practice to maintain or improve the standards of safety and health. Factories and Machinery Act 1967 (Act 139) which provides the control of factories with respect to matters relating to the safety, health and welfare of persons therein, the registration and inspection of machinery and for matters connected therewith. National Wages Consultative Council Act 2011 which aims to set up a council to recommend the minimum wage for various sectors, regions and jobs. Labour Ordinance (Sabah Cap. 67) which provides minimum protection to employees with regard to their terms and conditions of service consisting of working hours, wages, holidays, retrenchment benefits, etc. in Sabah. Labour Ordinance (Sarawak Cap. 76) which provides minimum protection to employees with regard to their terms and conditions of service consisting of working hours, wages, holidays, retrenchment benefits, etc. in Sarawak.

In addition, before the Committee, a Government representative outlined the various measures taken to monitor, prevent and suppress the problem of forced labour and human trafficking. The Government had ratified several international instruments and adopted several pieces of domestic legislation in this regard. These included the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act. This Act required the establishment of a Council for Anti-Trafficking Persons, which included Government representatives and civil society groups, and had been established in 2008. The Government had also adopted the National Action Plan on Trafficking in Persons (2010–15) which outlined the national efforts to combat trafficking in persons in the areas of prevention, rehabilitation, protection and prosecution. The Plan complemented the existing legislation and aimed to provide direction and focus to efforts in order to prevent and suppress trafficking in persons. With regard to cases of trafficking, there had been an increase in the number of cases brought to court. Out of the 128 cases brought in 2013, 114 were still pending before the courts. There had also been five convictions in such cases, and the penalties of imprisonment imposed in these cases would act as a deterrent to prospective perpetrators of this crime. In addition, 128 operations related to trafficking in persons had been conducted in 2013, resulting in 89 investigations, 140 arrests and 650 victims rescued. For the purpose of uniformity, Standard Operating Procedures had been launched in November 2013 for enforcement agencies to ensure a commitment to the process of identification, referral, assistance and social inclusion of presumed or identified victims of trafficking in persons. In addition, 911 protection orders and interim protection orders had been granted. Based on complaints, as well as regular inspections, 1,663 investigations had been conducted at workplaces, while a total of 33,185 inspections had been conducted by the Department of Labour of Peninsular Malaysia. The Government was conducting awareness raising nationwide regarding the new Minimum Wages Order 2012, in order to deter labour exploitation of foreign workers. As of 2014, all employers were mandated to implement this Order, including for foreign workers. Additionally, initiatives to prevent forced labour and better protect victims of trafficking were being undertaken, including steps to: amend the Private Employment Agency Act, 1981; draft a Regulation for Domestic Workers; allow those victims of trafficking who did not require further protection and care to engage in work; and implement a pilot project for a shelter run by a non-governmental organization. In addition, the anti-trafficking legislation, supplemented by the Employment Act, 1955, and other pieces of labour legislation, addressed the issue of labour exploitation. Moreover, in order to regulate the recruitment of foreign workers, the Government had signed Memoranda of Understanding with eight source countries covering the formal sectors, as well as with the Government of Indonesia regarding the recruitment and placement of domestic workers. Moreover, the Government was currently negotiating with four other governments with the intention of concluding such agreements. The entirety of these measures indicated that the Government was committed to combatting trafficking in persons and smuggling of migrants in Malaysia.

The Worker members indicated that Malaysia was a destination country for trafficking in men, women and children for purposes of prostitution and forced labour. Despite the written information supplied by the Government on the amendments to the 2007 Anti-Trafficking in Persons Act and Anti-Smuggling of Migrants Act, it was a cause for some concern that the victims of trafficking were nowadays looked upon as irregular workers. More than half of the 120 court cases that had been brought for trafficking in 2012–13 had still not been settled, and no information was available on any sanctions imposed. The vulnerability of migrant workers to forced labour, notably in the textile, plantation and construction sectors, as well as in domestic work, was also worrying. With 2.2 million registered migrant workers and 1.3 million who were not registered, migrants made up a third of the country’s workforce. Some 40 per cent of undocumented migrant workers were thought to be women. Upon their arrival in the country, migrant workers’ passports were confiscated. Moreover, in many cases they were deceived concerning their wages and working conditions, were underpaid or had their pay withheld. From a legal standpoint, migrant workers were dependent on the placement agencies to which, since 2013, they had had to pay a commission that ought to be paid by their employer. In cases of physical or sexual abuse, they could not appeal to the courts for fear of having their contracts cancelled, whereupon they would become undocumented migrants and were liable to expulsion. Domestic workers were not protected under Malaysia’s labour legislation, were not entitled to the minimum wage and could not join trade unions. No employer had ever been charged with violating the rights of domestic workers. Although there were sometimes bilateral agreements with the country of origin, neither these agreements nor Malaysia showed any concern for the situation of migrant workers. In conclusion, while laws on this issue did exist in Malaysia, they were not applied and no sanctions had ever been imposed.

The Employer members emphasized that the Committee’s duty was of a technical nature, for it had to examine the application of a Convention on the grounds of its provisions. Hence, there was no room for political considerations on what should be the content of the Convention. Turning to the case, they observed that the Committee had to examine, for the second consecutive year, the application of the Convention by Malaysia, which was surprising since the Committee of Experts had not received new concerning facts. In that sense, for the Employer members, it was a real case of follow-up. On the grounds of the indications of the Government representative, there was some progress to be noted in what was indeed a difficult regional issue. The case concerned the problem of forced labour and trafficking of persons arising from labour migration. In this regard, they emphasized that, while the Convention imposed on States direct and serious responsibilities, the problem of exaction of forced labour of migrant workers was more a regional issue than a national issue. While the Committee of Experts was limited to examining compliance at the national level when examining the application of a Convention by a specific member State, they considered that the Committee’s discussion would be enriched if it was held on the basis of a collection of national responses of all countries concerned in South-East Asia. Due to the regional character of the issue, they welcomed the bilateral and multilateral agreements that had been concluded to tackle this issue. It was also encouraging to note that the Government indeed had undertaken a comprehensive process of labour inspection which showed that it assumed its responsibilities and was acting in good faith. This was even more noteworthy as the exaction of forced labour and the trafficking of migrant workers always occurred in the margins and shadows away from a standard process of labour inspection carried out to ensure the enforcement of law. In conclusion, and in spite of the fact that there was some progress, the Employer members stressed the need to reinforce the efforts to combat trafficking and the exaction of forced labour of migrant workers. To this end, the Government should avail itself of the technical assistance of the ILO.

The Worker member of Malaysia indicated that despite the serious issues raised during the Committee’s session in 2013, there had been no initiatives taken for dialogue between the Government and the various stakeholders. There were 2.4 million authorized migrant workers in Malaysia as well as an additional 2.2 million undocumented workers. The Employment Act, 1955, had been amended to legalize the outsourcing of workers through third-party companies, which contributed to conditions amounting to forced labour. Migrant workers were at the mercy of the labour contractors and were deprived of security of tenure, social security benefits and occupational safety and health protection, and were unable to join unions. The amendments to the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act undermined efforts to combat human trafficking by narrowing the legal definition of human trafficking, and by increasing the likelihood that victims of trafficking would be treated as undocumented migrant workers subject to immediate deportation. However, the Government should be praised for establishing shelters for victims of trafficking. Nonetheless, the National Action Plan (2010–15) was only a general document, and contained few concrete steps. The Ministry of Human Resources did not have sufficient officers to address trafficking for labour exploitation, and these officers were not equipped to identify victims of trafficking. Migrant workers lacked access to justice, as those who filed cases against their employers had their work permits cancelled unilaterally, leaving them with irregular status. Irregular migrant workers were subject to arrest and punishment, and deportation procedures were often lengthy resulting in indefinite detention under poor conditions, which had resulted in the deaths of several workers. Moreover, domestic workers were not accorded the minimum standards contained in the national law. With reference to examples of abuse of domestic workers, it was underlined that there had been no consultations regarding the proposed regulations on domestic workers. Moreover, while the Minimum Wages Order, 2012, was welcomed, this Order did not apply to domestic workers, and further measures were necessary for its enforcement. The Government was urged to take steps to: welcome an ILO mission to Malaysia to meet the various stakeholders to jointly develop constructive proposals; accept ILO technical assistance without delay; establish national joint councils composed of tripartite partners and non-governmental organizations concerned with migrant workers’ issues; establish regional joint councils; ensure that employers, recruiting agents and officers who contribute to trafficking in person were effectively punished; and ensure that the travel documents of migrant workers were not kept by unauthorized personnel including employers.

The Employer member of Malaysia strongly supported the statement of the Malaysian Government. The observations of the International Trade Union Confederation (ITUC) of August 2013 were not supported by any evidence concerning the alleged trafficking or forced labour of foreign workers. It was clear from the information provided, that the Government had taken and implemented the necessary initiatives to combat and eliminate any practice of human trafficking or forced labour, through various ministries and agencies, such as the Council for Anti-Trafficking in Persons, which was tasked with the enforcement of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act, 2007. The Government had also established a comprehensive framework of laws and regulations to protect foreign workers, particularly those subject to forced labour. Furthermore, a Committee established at the Ministry of the Interior met every month to coordinate the anti-trafficking policy of the Government. In the federal state of Selangor, an anti-trafficking council had even envisaged independent anti-trafficking efforts. The Government had continued its public-awareness campaigns on anti-trafficking in the print media, on radio and television, including over 600 public-service-awareness programmes on trafficking in national and federal state radio stations. Training on anti-trafficking had continuously been provided to officers with responsibilities in this regard, including to Malaysian troops prior to their deployment in international peacekeeping missions. The information submitted by the Government had indicated that there had been 120 prosecutions under the Anti-Trafficking in Persons Act, 2007, resulting in 23 convictions with seven cases still pending. The Department of Labour had carried out 41,452 inspections in 2012 and 15,370 inspections in the first nine months of 2013 relating to forced or compulsory labour practices. It should be noted that no forced or compulsory labour practices were recorded in the first nine months of 2013. All the initiatives taken showed that the Government had taken the necessary and adequate measures within its capacity and means. They also showed the commitment of the Government and refuted any statements according to which it had failed to take any action since the last discussion of the case in the Conference Committee.

The Government member of Singapore welcomed the concrete efforts and measures taken by the Government to eliminate trafficking in persons, including: the adoption of relevant laws, such as the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act, 2007; a National Action Plan for 2010–15 focusing on prevention, rehabilitation, protection and prosecution; and the prosecution and conviction of a number of perpetrators by the national courts, including information on the specific penalties imposed in 2012 and 2013. The speaker also noted that additional initiatives were envisaged for the better protection of victims of trafficking, including allowing those who did not require protection and care, to work instead of being placed in shelter homes. Furthermore, he noted the pilot project for an NGO to run a shelter home providing assistance to victims, with support from the Government. The Government had been taking proactive and resolute steps to address the challenges in tackling and combating trafficking in persons. These efforts should be encouraged and further assistance provided to help the country to fulfil its obligations under the Convention.

The Worker member of Indonesia indicated that Malaysia remained the leading destination for the majority of Indonesia’s migrant workers and that of the 1.2 million registered Indonesian workers in Malaysia, 70 per cent were female domestic workers. There were several reasons why trafficking originated from Indonesia. Firstly, many undocumented workers, which were at a higher risk of becoming trafficking victims, could easily pass into Malaysia through sea or land borders. Secondly, workers became victims of organized crime syndicates that recruited a significant number of young women by promising work in restaurants and hotels, or by the use of “Guest Relations Officer” visas and false documents, but were subsequently coerced into Malaysia’s commercial sex trade. Reports alleged that collusion between individual police officers and trafficking offenders led to the worsening of these practices. Others became trafficking victims through accumulated debts with labour recruiters, both licensed and unlicensed companies, which used debt bondage to hold documents and threats of violence to keep migrants in forced labour. These were the reasons why the Indonesian Government stopped sending migrant workers to Malaysia between June 2009 and December 2011, and only reauthorized it after an amended Memorandum of Understanding was signed by both countries, guaranteeing that Indonesian workers would enjoy basic rights such as minimum wages and keeping their own passport, and agreeing to improve the practice of recruitment agencies regarding placement fees, dispute settlement and tightening the process of issuing visas. Great hope initially rested on this Memorandum of Understanding, but it had not been fully implemented and it was important that non-state actors, namely unions, be involved in the monitoring of its implementation. The Malaysian Trade Union Congress had been willing to support and recruit migrant workers as part of their union, but the immigration law prohibited migrant workers from joining trade union activities. Domestic workers were also being categorized as informal workers, leaving them without adequate protection when they needed help. National laws and the Memorandum of Understanding could be more effective if trade unions were able to represent the interests of migrant workers. There was no clear policy acknowledging migrant workers as having the right to enjoy the same legal protection as national workers. Malaysia and Indonesia needed to quickly ratify the Domestic Workers Convention, 2011 (No. 189), so that all domestic workers could be recognized by the law and spared from abuse. Since the Government publicly acknowledged the human trafficking problem, he called upon the Government to show a greater commitment to addressing the issue, including through increased investigations and prosecutions of offences and identification of victims, increased efforts to prosecute trafficking-related corruption by government officials, and greater collaboration with NGOs and international organizations to improve victim services in government shelters.

The Government member of Brunei Darussalam stated his Government’s support for the response of the Government to the observations made by the Conference Committee regarding its compliance with the Convention. He recalled that Brunei Darussalam and Malaysia had shared special relations and cooperation for decades. His Government acknowledged and appreciated the concerns raised by the Conference Committee, but also wished to highlight the positive initiatives and efforts that had been conducted and strategically implemented, namely: the establishment of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act, 2007; the efforts toward the strengthening of legal mechanisms dealing with trafficking in persons; and the improvement of the protection and rehabilitation of victims, with resources allocated to combating trafficking in labour through systematic inspections and investigations.

The Worker member of the Philippines expressed the view that the situation of migrant workers had not improved since the discussion in the Conference Committee in 2013, and required more appropriate and bold actions and initiatives. He indicated that Malaysia was a country of destination and, to a lesser extent, a source and transit country for trafficking in persons. The majority of trafficking victims voluntarily immigrated to Malaysia in search of a better life, and while many offenders were individual business people, large organized crime syndicates with connections to high government officials were also involved. Many young women were recruited for work in Malaysian restaurants or hotels, some of whom migrated through the use of “Guest Relations Officer” visas, but were subsequently coerced into Malaysia’s commercial sex trade. There were about 2 million documented workers, and about the same amount of undocumented workers in the country. Many migrant workers faced restrictions on movement, deceit and fraud in wages, passport confiscation or debt bondage. While the Government had passed the 2007 Anti-Trafficking and Anti-Smuggling of Migrants Act, victims were more likely to be treated as undocumented migrants than as victims, and were therefore subject to immediate deportation. Only a few prosecutions or arrests for forced labour had been reported. On the contrary, the speaker referred to a case where an Indonesian girl identified as a victim of trafficking by the authorities had been prosecuted for theft, with her employer being left unpunished. The country should therefore intensify its efforts to identify victims of trafficking and investigate and prosecute the crime. It should also increase its efforts to prosecute corruption by government officials in relation to trafficking and enhance collaboration with trade unions, NGOs and international organizations to assist victims in government shelters. Bilateral agreements with neighbouring countries should also be encouraged and closely monitored to ensure effective enforcement.

The Government member of Myanmar welcomed the various efforts and measures of the Government with regard to the elimination of trafficking in persons, not only at the national, but also at the regional and international levels. These measures had included the adoption of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act, 2007, and the establishment of the National Action Plan (2010–15). It was positive to learn that the initiatives were also in accordance with regional and international instruments, such as the ASEAN Declaration Against Trafficking in Persons Particularly Women and Children, the Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of the Child. The additional initiatives to provide better protection for victims of trafficking in persons were also welcomed. Furthermore, the memoranda of understanding with at least 13 countries on the recruitment and placement of domestic workers and the current negotiations with other countries to this effect, including Myanmar, were also positive developments.

The Worker member of France noted that workers’ rights in Malaysia were gradually being diminished by a Government which afforded more importance to the welfare of enterprises than the welfare of workers. The increasingly common practice of using recruitment agencies was an illustration of that. In fact, migrant workers had no direct contact with their employers as the agency served as their employer. In addition, those agencies profited from migrants’ work by levying almost half of the wages earned, including for overtime and work on weekends and public holidays. Moreover, until 2013, employers using those recruitment agencies had to pay a placement fee. A government decision of 30 January 2013, however, currently authorized employers to recover the sum paid to the agencies by deducting it from workers’ wages. The Government indicated that the measure was intended to reduce labour costs. The fee should simply have been scrapped since it in fact fell on the workers by drawing them into a spiral of debt and vulnerability. In order to break a contract, employers only had to inform the recruitment agency that they no longer needed the worker, and to communicate with the ministry responsible for immigration so that the migrant would be returned to the country of origin. Many employers preferred to utilize that workforce rather than a local workforce so as to avoid employment relations. The recruitment agencies thus became “labour service providers”. However, under Malaysian legislation, those practices were illegal. The employment of workers through recruitment agencies was authorized, however such agencies were not supposed to take the place of employers. The Government had recalled in 2010, that outsourcing companies were responsible only for organizing the entry of workers into the country and that the employers were bound to ensure that all the rights of workers were recognized and respected, and to meet all their legal obligations. Employers therefore could not escape employment relations with their workers by claiming that the responsibility fell on the recruitment agency. Furthermore, employers had additional obligations to those workers, beyond the workplace and working time, since they should usually provide accommodation and ensure social security coverage. The law should prevent employers from disregarding existing regulations and engaging migrant workers in conditions of forced labour, as such a situation was unacceptable.

The Government member of Switzerland expressed concern about the allegations of trafficking in persons and the absence of adequate court proceedings in that area. Additionally, the Committee of Experts had reported a deterioration of the situation and treatment of migrant workers, as it appeared they were criminalized rather than protected from abuse. The Swiss Government commended the Government’s efforts to address those issues, but invited it to intensify them. To that end, the Government should formulate regulations on domestic workers and legislation on migrant workers in general, as recommended to it by other United Nations bodies.

The Government member of the Russian Federation considered that the current debate was the last stage in the examination of the case. Malaysian legislation was in conformity with the Convention and provided for heavy sanctions in cases of trafficking in persons. Additionally, the Government had concluded bilateral agreements and agreements with the countries of origin of migrant workers, which were of particular importance. It was taking subsequent action in the framework of the legislation and bilateral agreements. He concluded by inviting the Government to strengthen its efforts, and in particular to protect the rights of migrant workers. The Government should provide information to the ILO, which in turn should continue to provide technical assistance to the Government.

The Government representative expressed his Government’s respect and heartfelt appreciation for the many views and complimentary comments submitted by the tripartite members with regard to the pertinent issues raised in relation to the application of the Convention. Having regard to the policy of securing a well-balanced growth between social and economic development and the demand for social equity, preservation of dignity, respect, and care for the well-being of people, he reiterated that the Government had undertaken to regularize and heighten its collaborative engagement with the domestic tripartite constituents, in addition to regulating and promulgating policies to solicit and bind common cooperation with governments and the international community so as to minimize, if not eliminate, the possibility of human trafficking across boundaries. The launch by the Government of the National Action Plan against Trafficking in Persons (2010–15), on 30 March 2010, reflected its commitment and aspiration to combating the crime of trafficking in persons. The plan outlined several guiding principles, strategic goals and programmes undertaken by the Government which guided the nation in its mission to deal with this heinous crime. The Government’s firm and persistent policy was to secure the continued and constructive execution of principles that had been identified as fundamental in guiding and ensuring the smooth implementation of the Government’s National Action Plan. It was also pertinent to establish close cooperation and coordination, as well as implementing integrated actions, with respect to information sharing, entry point control, delimitation, prevention, investigation and prosecution, among enforcement agencies, relevant ministries and agencies, including state governments and local authorities, so as to ensure that victims were given timely protection and that perpetrators were punished. The Government strongly believed in the importance of tripartite engagement for overcoming irregular practices with regard to human trafficking. The speaker urged the employers and workers to work hand in hand with the Government in order to achieve this common goal. Such commitment would certainly take into consideration the very subject matter addressed in the Conference Committee’s discussion in this regard. He reiterated that the Government, through the Council of Anti-Trafficking in Persons and Anti-Smuggling of Migrants, had had regular engagement with several relevant government ministries and departments over the years, with a view to innovating new ways of tackling and managing issues associated with trafficking in persons and smuggling of migrants, this amidst challenges in the labour market. The Government needed collaborative networking and the unwavering support by all concerned in order to ensure the smooth implementation of its policy. The complex and challenging issues relating to trafficking in persons and the mobilization of persons across regions needed to be regulated effectively.

The Worker members recalled that in 2013, the Conference Committee had requested the Government to take immediate and effective steps, but that it had not done so and had followed none of the Committee’s recommendations. According to the Malaysian trade unions, there had been no social dialogue either, with the Government merely organizing public-awareness workshops and training a special team of 43 officials. In spite of the large number of workplace inspection visits that had been carried out (more than 15,000 in the first nine months of 2013), the labour inspectorate had failed to uncover a single instance of forced labour. In the document the Government had submitted to the Office, it cited nine laws and regulations that dealt with forced labour, but the Worker members wondered what purpose such a juridical arsenal of provisions could serve if the number of migrant workers engaged in forced labour in Malaysia continued to rise. The Government should adopt effective measures that afforded migrant workers full protection and allowed them to exercise their rights, especially their right to compensation in cases of abuse. Victims of forced labour should no longer be treated as delinquents. As to domestic workers, the Government should enforce the Minimum Standards Act and ratify Convention No. 189. More than anything, the Government should ensure compliance with all legislation that prohibited the confiscation of passports, provided for compulsory insurance against occupational accidents and banned placement recruitment agencies from acting as employers. Purveyors of forced labour should be taken to court and sentenced to fines that were genuinely dissuasive. The Worker members called on the Government to: establish a national migration board composed of representatives of all the parties concerned, including the social partners and NGOs in order to monitor migration policy; set up regional boards to work with the source countries of migrant workers and with social workers and NGOs in order to monitor the compliance of bilateral agreements with Convention No. 29 and other fundamental Conventions; and to accept a direct contacts mission to assess the entire situation.

The Employer members stated that the discussion had overlapped with issues of labour migration and practices of recruitment agencies, and asserted that the Conference Committee should only supervise issues within the scope of the Convention. They indicated that while differences had emerged during the discussion, there was also a strong determination that this Convention should be robustly supervised for all countries, including Malaysia, and that forced labour needed to be eradicated. The difference was that while the Worker members considered that no substantial progress had been achieved, the Employer members saw this as a case of progress, considering that the Government had presented a series of steps which provided a solid response to the Conference Committee’s June 2013 discussion. In addition, they were encouraged by the Government’s acknowledgment of the issue in this case and of the fact that its journey was incomplete and that it required the support of external actors. They encouraged the Government to use the capacities of the ILO and those existing within the country, and pointed out that multiple tools were available to help it resolve its forced labour issues. They finished by stating that further progress could be made, but that strong national determination was necessary in order to achieve this.

Individual Case (CAS) - Discussion: 2013, Publication: 102nd ILC session (2013)

The Government provided the following written information.

The National Action Plan against trafficking in persons and smuggling of migrants (2010–15) had been introduced. There were eight core areas covered by the Action Plan and these were as follows: (i) establishment of the Council for Anti-Trafficking in Persons and Anti-Smuggling of Migrants (the Council); (ii) strengthening of the existing law relating to anti-trafficking in persons and anti-smuggling of migrants; (iii) establishment of shelter homes; (iv) collaboration with civil society groups; (v) capacity building for enforcement agencies; (vi) documenting standard operating procedures in relation to anti-trafficking in persons and anti-smuggling of migrants; (vii) international/bilateral cooperation; and (viii) raising awareness.

The Council which was established in 2008 and headed by the Secretary-General of the Ministry of Home Affairs, had the objective of formulating and overseeing the implementation of the National Action Plan on the prevention and suppression of trafficking in persons including the support and protection of trafficked persons.

In 2010, the original Anti-Trafficking in Persons Act, 2007 (Act 670) was amended to include the following: (i) trafficking in persons which was defined as all action involved in acquiring or maintaining the labour or services of a person through coercion, for the purpose of exploitation. The profit in trafficking came not from the movement of person but from the sale of a trafficked person’s services or labour in the country of destination; and (ii) smuggling of migrants which meant arranging, facilitating or organizing, directly or indirectly, a person’s unlawful entry into or unlawful exit from any country of which the person was not a citizen or a permanent resident. There were presently six gazetted shelter homes for victims of labour trafficking. Each shelter could accommodate 200 persons at any one time and had been in operation since 15 August 2010. In addition to government-operated shelters, the Government also actively cooperated with civil society groups for the establishment of additional shelters and the provision of counselling and skills training for the trafficked victims. Capacity building was also an essential component of efforts to heighten the investigative and intelligence gathering of enforcement agencies. Towards this end, front line agencies such as the Immigration Department, the Royal Malaysia Police, the Malaysian Maritime Enforcement Agency, the Royal Malaysian Customs and the Department of Labour were actively pursuing training courses either locally or in cooperation with other countries such as Australia and Brazil.

Peace, prosperity and rapid development of the country had attracted foreigners, the majority of whom were looking for job opportunities, especially those from countries which were experiencing political and economic instability. At the same time, the country needed foreign workers in certain sectors such as services, plantation, industrial, construction and manufacturing. The existence of anti-trafficking law supplemented by the Employment Act, 1955 and other labour legislation addressed the issue of labour exploitation. In order to regulate the recruitment of the foreign workforce, the Government had signed Memoranda of Understanding (MOU) with at least 13 countries of origin including a specific MOU on the recruitment and placement of domestic workers. All the MOUs were aimed at benefiting equally both employers and employees. A case in point was the MOU on the recruitment of Indonesian foreign workers which was signed in 2003 and subsequently there were a series of negotiations to further strengthen the greater bilateral cooperation between the Governments of Malaysia and Indonesia. The Government would not tolerate transgression of the Anti-Trafficking in Persons Act. As of April 2013, 442 such cases were taken to court and 174 cases were pending trial under the Anti-Trafficking in Persons Act, 2007. The implementation of this law would continue to be the core commitment of the Government in handling of issues concerning forced labour.

In addition, before the Committee a Government representative, referring to and supplementing the written information provided, emphasized that his Government had taken various steps in its constant endeavour to monitor, prevent and suppress the problem of trafficking in persons, including the ratification of the United Nations Convention against Transnational Organized Crime and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (the “Trafficking Protocol”). In addition, 30 state specialist prosecutors had been appointed and guidelines had been issued on the handling of cases of trafficking in persons. Various measures had also been taken to avoid misidentification between the crimes of trafficking in persons and the smuggling of migrants. Capacity building was essential in ensuring that the personnel of all the agencies and non-governmental organizations involved in efforts to combat trafficking in persons had the relevant knowledge and skills, particularly in the areas of policy, prevention, protection, rehabilitation and prosecution. In that respect, it was of great importance to share knowledge and experience with foreign partners. Standard operating procedures had also been developed for the committees of the Council for Anti-Trafficking and Anti-Smuggling of Migrants and a national referral system was being developed to screen all cases and reports of trafficking in persons and smuggling of migrants. Government action in the field of capacity building included the seminar conducted in 2011 by the Attorney-General’s Chambers for participants from non-governmental organizations, private agencies, universities and public agencies on the rights of employees and the roles and responsibilities of employers.

He emphasized that trafficking in persons was a complex crime that commonly involved crime syndicates operating in organized, structured and well-established networks. A comprehensive and coordinated response was therefore essential, backed up by cooperation and collaboration at the national, regional and international levels. As the problem of trafficking in persons was relatively new in the country, it had been necessary to focus on the constant and widespread dissemination of information, as well as investing in capacity building and obtaining the support of community leaders to shape public opinion. Efforts were being made to establish close cooperation and coordination between enforcement agencies, the relevant ministries and agencies, including state governments and local authorities, with regard to information sharing, entry point control, prevention, investigation and prosecution with a view to ensuring the timely protection of victims and the punishment of perpetrators. The Government was also placing emphasis on a systematic and effective information management system to improve inter-agency coordination and raise public awareness through the dissemination of the relevant information.

The Employer members emphasized their wholehearted support for the Convention and their commitment to the elimination of forced labour, including trafficking in persons for the purpose of forced labour. They also supported the initiative to set new standards to supplement the Convention. They recalled that Malaysia was primarily a country of destination of migrant labour and, in the same way as other countries of destination, there appeared to be a number of issues in the country in relation to migrant labour. There were reports of migrant workers being subjected to such practices as having their passports retained by their employers, wages remaining unpaid and being deprived of their liberty, which constituted problems in relation to the application of the Convention and the law in general. Two Governments, Indonesia and Cambodia, had suspended the sending of their citizens to work in Malaysia, although the Government of Indonesia had recently lifted the suspension following the conclusion of an agreement with the Government of Malaysia that Indonesian migrant workers could retain their passports, earn market wages and benefit from one day of rest each week. The Employer members noted that there appeared to be some progress on the issue, particularly in relation to the agreement with the Government of Indonesia. They also noted the adoption of the Anti-Trafficking in Persons Act, 2007, which established penal sanctions for individuals convicted of trafficking for forced labour. It appeared that the Government was actively prosecuting violations of the Act and obtaining convictions. The Employer members hoped that the convictions were accompanied by adequate punishment and would like to see statistical data on that issue. The numerous other measures mentioned by the Government representative were also of interest.

The Worker members recalled that forced labour was prohibited by the Constitution and legislation. The Anti-Trafficking in Persons Act had been adopted in 2007 to combat a phenomenon that had been described as early as 2001 as a scourge that was growing with technological progress in transport and organized crime. Malaysia was a country of destination and, to a lesser extent, a country of origin and transit for trafficked men, women and children, especially for prostitution and forced labour. Although the new legislation provided for severe sanctions, there was no avoiding the fact that the Government had failed to supply any information on the sanctions imposed. An Interpol report referred specifically to the forced prostitution of Ugandan women in Malaysia, some of whom had been diverted while travelling to China or Thailand and had been forced to engage in prostitution. There were no precise figures. However, the vast majority of the victims of human trafficking were part of the 2 million workers in a regular situation and roughly 1.9 million workers in an irregular situation, essentially from Indonesia, Nepal, India, Thailand, China, the Philippines, Burma, Cambodia, Bangladesh, Pakistan and Viet Nam. Children were often exploited as cheap labour or for sex exploitation, forced marriage, criminal activities, armed conflict or begging. United Nations Children’s Fund (UNICEF) had highlighted the fact that the trafficking of children was considered normal in the country. Cheating migrants out of their wages, confiscating their passports, placing them in debt bondage and housing them in warehouses were common practice. The trafficking in person for the purpose of forced labour was one of the most lucrative businesses in the world. Yet the Government had cited only 844 victims of trafficking who were under court protection, pursuant to section 51 of the 2007 Act, and 2,289 others who had been granted temporary protection for 14 days under section 44 of the Act. Either the Government was not in possession of accurate statistics, or its presentation of the facts was over-optimistic. In any event, a veritable gulf existed between the information that it had provided and the data supplied by non-governmental organizations and international institutions.

Recalling that the Convention required the illegal exaction of forced or compulsory labour to be punished by penalties that were truly effective and strictly enforced, the Worker members regretted that the Government’s report contained no information on the penalties imposed in practice. That showed that the Government was not doing enough to combat the problem and was not really trying to eradicate forced labour, which had traumatic moral and physical effects on those concerned, many of whom subsequently experienced great difficulties in reintegrating into society. And yet, as a signatory since 2009 to the Trafficking Protocol, the Government should be aware of the provisions of article 6 on that subject. The Worker members considered that it appeared obvious that the Government was respecting neither the letter nor the spirit of the Convention and that greater efforts were needed to implement the observations of the Committee of Experts. The case under discussion was particularly serious, and probably only represented the tip of the iceberg.

The Worker member of Malaysia emphasized that the estimated 2.2 million migrant workers in a regular situation in Malaysia, as well as the estimated 2 million workers in an irregular situation, were engaged, not only in plantations, which used to be their main employer, but also in manufacturing, services and domestic work. The migrants were from neighbouring countries and were brought in by recruitment agencies. However, there was no proper monitoring mechanism for migrant workers, there had never been a comprehensive policy for foreign labour and the Government had no knowledge of the exact numbers of workers concerned. While in most cases there were no agreements between the Government and the Governments of countries of origin, in 2011 an agreement had been signed with the Government of Indonesia under which Indonesian domestic workers had the right to retain their passports, earn market wages and benefit from one rest day a week. Although the Government seemed to consider the agreement with Indonesia as the answer to the problems experienced by migrant workers, the reality was quite different. There continued to be a complete failure to speak honestly and openly about the institutionalized nature of the abuse that they suffered, while discussions between the governments concerned tended to focus on maximizing profits, minimizing costs and keeping market rates competitive. And yet, Indonesian migrant domestic workers suffered from various forms of violence. Over half of them suffered physical abuse, 15 per cent were sexually abused and their poor working conditions included no weekly paid rest day, the non-payment and wrongful deduction of wages, improper accommodation, long working hours, multiple jobs and undernourishment. Investigations by non-governmental organizations showed that almost half of migrant domestic workers were below the age of 21, which was the minimum legal age for domestic work in Malaysia. Recruitment agencies subjected migrant domestic workers to harsh treatment, including the retention of their passports, searches and confiscation of the contact details of their embassies and of non-governmental organizations which could protect them. The agreement concluded with the Government of Indonesia might have been more effective if there was a proper mechanism to monitor its implementation.

Migrant workers from Bangladesh also suffered from severe abuse. Following the lifting of the ten-year freeze on their recruitment by the Government of Malaysia in 2006, thousands of Bangladeshi workers had been recruited and cheated by approved outsourcing companies, which retained their passports and failed to renew their work permits, leaving them in an irregular situation. Under a programme launched in 2011, the Government had approved 340 agents to register and legalize the migrant workers, including issuing them with new passports and work permits. However, many of the agents were, in practice, the same outsourcing companies which had subjected them to abuse. A year and a half since the launch of the programme, and six months after the final deadline for the completion of the legalization process, thousands of workers were still in an irregular situation. They had not only lost one year’s wages, but had no passports and lived in fear of arrest, detention and maltreatment, and were often threatened by their agents. Although complaints had been filed, none of the agents had been arrested. An example was an agent which, according to reports from the workers concerned, had registered over 5,000 workers, collected money from them, retained their passports and continued to threaten them. No action had been taken despite the numerous complaints made to the Bangladesh authorities. The authorities of Malaysia and Bangladesh should therefore be called upon to investigate the situation immediately and to retrieve and return the workers’ passports. He called on the Government to draw up a clear roadmap to ensure the rights of all domestic and migrant workers in the country, improve screening to identify victims of abuse and trafficking, and provide victims with legal aid, counselling and other forms of assistance. The Government needed to have the political will to impose severe penalties under the Anti-Trafficking in Persons Act as a deterrent to abuse by traffickers, agents and employers. The discussion of the case by the Committee was particularly welcome and offered hope to the workers concerned.

The Employer member of Malaysia, stating that forced labour could not be condoned, fully supported the initiatives and positive actions of the Government in combating and eliminating forced labour, especially trafficking in persons. The root cause of foreign workers having huge debts even before leaving their country needed to be addressed urgently. He therefore urged the ILO and the other relevant United Nations agencies to work closely with the countries of origin to address the situation of informal recruiters imposing high fees on foreign workers. Governments of the countries of origin should ensure that exorbitant fees were not imposed on their nationals seeking employment abroad as these workers were already contributing tremendously to their country through the remittances they sent home. His organization had been calling for clearer and consistent policies on the recruitment of foreign workers with a view to reducing the role of informal recruiters. In this regard, he referred to two initiatives carried out under the ILO TRIANGLE Project in which the Malaysian Employers Federation was involved, notably: the study for the ASEAN (Association of Southeast Asian Nations) Confederation of Employers (ACE) to develop a compendium of best practices to be used by countries of origin and destination in managing the pre-departure, the employment and post-employment of foreign workers; and the forthcoming “Guidelines for Malaysian Employers on Managing the Employment of Foreign Workers”. He wished that similar collaborations with the ILO Regional Office in Bangkok could be replicated in other countries in the region. He expressed the sincere hope that with the positive initiatives in place, the forced labour issues, especially those pertaining to the employment of foreign workers, would be better managed and eventually eliminated.

The Worker member of Indonesia highlighted that Malaysia was one of the largest countries of destination for migrant workers in South-East Asia, and that there were approximately 2 million migrant workers from Indonesia. Due to loans at exorbitant interest rates, most migrant workers could not afford to return to their home countries, and some were in bonded labour. A large number of migrants were working in hazardous situations, including long working hours, and faced physical and sexual abuse. Turning to the specific situation of women domestic workers and their vulnerability to abuse, including harassment and rape, she recalled that the Government of Indonesia had imposed a ban imposed on sending Indonesian domestic workers to Malaysia. The ban had been lifted after the signing in 2011 by the Governments of Malaysia and Indonesia of a Memorandum of Understanding (MOU) on provisions on minimum wages, rest days, and the right of domestic workers to retain their identity documents. However, in practice employers or private recruiters were still retaining passports of domestic workers and the MOU was not being properly implemented. In addition, the MOU allowed for overtime payment instead of providing the one day of rest, without a proper mechanism to monitor such overtime payments. The lack of effective enforcement of the MOU could result in encouraging slavery-like practices and she considered that the Government had yet to demonstrate its strong commitment to protect domestic workers against forced labour.

The Worker member of Cambodia drew attention to the exposure to forced labour of women and girls migrating to Malaysia as domestic workers. The lack of employment opportunities led many women to migrate, and out of the 20,909 workers migrating in 2010, 18,038 were domestic workers. He pointed to situations of forced labour at the hands of employers or informal labour recruiters operating in Malaysia, as well as Cambodia, through illegal salary deductions, non-payment of wages, and passport confiscation. Legal protection to address excessive working hours, psychological, physical and sexual abuse against domestic workers was also insufficient as the Employment Act excluded domestic workers from key labour protections. Workers who wished to leave an abusive employer without permission lost their legal status and often faced penalties under immigration law. This increased their reluctance to leave an abusive employer exposing them to forced labour practices. While noting the Cambodian Government’s announcement to freeze the sending of migrant workers to Malaysia as a response to the abovementioned violations, he hoped that the Government of Malaysia would also stop tolerating forced labour practices against migrant domestic workers.

The Worker member of the Philippines highlighted that Malaysia had become a country of origin and destination, as well as a transit country for trafficking in persons, especially of women and children. The majority of the victims of trafficking were migrant workers from Indonesia, Nepal, India, Thailand, China, the Philippines, Burma, Cambodia, Bangladesh, Pakistan and Viet Nam. In 2009, there were approximately 2 million migrant workers in a regular situation and an almost equal number in an irregular situation in the country. Migrant workers in plantations, construction sites, textile factories and domestic service experienced restrictions on movement, fraud in wages, passport confiscation or debt bondage. A significant number of young women were recruited for work in restaurants and hotels and subsequently coerced to work in the sex industry; many subcontracting companies recruited workers who were then submitted to conditions of forced labour. He drew attention to the very low number of prosecutions under the Anti-Trafficking in Persons Act and the lack of information on specific sanctions applied to those convicted, as well as the deportation of some victims of trafficking who had been given protective orders at an initial stage. The speaker urged the Government to intensify its efforts to: (i) investigate and prosecute labour trafficking offences; (ii) identify labour trafficking victims; (iii) prosecute cases of trafficking-related corruption by government officials; and (iv) enhance collaboration with trade unions, non-governmental organizations and international organizations to improve services for victims in public shelters.

The Government representative reaffirmed his Government’s firm commitment to regularize and increase its collaboration with the social partners in the country, and cooperate with other governments and the international community with a view to minimizing, if not eliminating, trafficking in persons across borders. As shown in the National Action Plan on trafficking in persons and smuggling of migrants (2010–15), the Government set out policies to minimize the possibility of trafficking in persons, through collaboration and constructive dialogue with the social partners and civil society. Regional cooperation with the Asian countries to regulate cross-border migration of workers, especially those without proper documentation, was also important in the context of efforts to combat trafficking in persons. Through the Council for Anti-Trafficking in Persons and Anti-Smuggling of Migrants, the Government had innovated appropriate and workable mechanisms and approaches in tackling and managing the issue over the past three years. While the concerns raised before the Committee were shared by the Government, the responsibility to address the issue of trafficking in persons should not be put on the Government alone. Rather, collective efforts were needed, involving all parties concerned, including the social partners. Due to the importance of enforcement, the enforcement agencies would provide full cooperation to the parties concerned to address and resolve this issue in an expeditious manner.

The Employer members stated that it was the first time that this case was being discussed in the Committee and, unlike the Worker members, they did not consider the observation of the Committee of Experts merely describing the “tip of the iceberg”. The Government did not deny that there were forced labour issues in the country and had provided information on the constructive measures it had taken to address them. The Employer members encouraged the Government to work with the social partners and with other countries in the region, in particular countries of origin, to address the issue of forced labour. In this regard, more emphasis could be placed on memoranda of understanding such as the one with the Government of Indonesia with a view to ensuring protection of the rights of workers from these countries, concerning hours of rest, leave, as well as wages, and that workers could keep their passports. They asked the Government to submit in 2014 a report to the Committee of Experts on the progress made.

The Worker members, recalling that Malaysia had ratified the Convention in November 1957, observed that there had been a sharp increase in human trafficking for forced labour in the country. Linked as it was to globalization, it was a phenomenon that was to be found in many countries. In 2007, Malaysia had adopted the Anti-Trafficking in Persons Act that provided for penal sanctions of up to 20 years in prison. However, no information was available on any specific sanctions that might have been imposed under the Act. The overwhelming majority of persons trafficked in Malaysia were drawn from the 4 million foreign workers in the country, whether in a regular or irregular situation, most of them originating from South-East and South Asia. A great many of them had been deceived about the type of work they would be expected to do, about their wages and about the treatment they would be subjected to, such as sexual exploitation, debt bondage or worse. The victims of forced labour were often treated as criminals when they were found in an irregular situation.

The Worker members considered that the Government was respecting neither the letter nor the spirit of the Convention, that the case under discussion should be followed up very closely by the Committee and that the Government should implement the Committee of Experts’ recommendations without delay. They called on the Government to pursue its efforts to combat trafficking, notably as part of the National Action Plan on trafficking in persons and smuggling of migrants (2010–15), and to provide information on the steps taken and the results obtained. Recalling that under Article 25 of the Convention, States were required to apply effective penal sanctions strictly in cases of forced labour, they called on the Government to provide information on the specific sanctions that had been imposed on persons sentenced under the Anti-Trafficking in Persons Act. The Worker members indicated that in June 2009 the Indonesian Government had placed a moratorium on the placement of domestic workers in Malaysia in order to protect its nationals and that since then the two countries had signed a revised MOU on the employment of Indonesian domestic workers. Unlike the previous agreement, the MOU stipulated that Indonesian domestic workers were allowed to keep their passports while in Malaysia. They were also entitled to one day of rest per week and to be paid according to the going market rate. The Worker members noted, however, that the agreement did not appear at all to be respected. They urged the Government to take all necessary steps for the MOU to be applied both in law and in practice and invited it to request appropriate ILO technical assistance.

Conclusions

The Committee took note of the oral and written information provided by the Government representative and the discussion that followed concerning trafficking in persons and the vulnerable situation of migrant workers with regard to the exaction of forced labour.

The Committee noted the information provided by the Government representative outlining the various measures taken to combat trafficking in persons and smuggling of migrants, including the implementation of the National Action Plan against trafficking in persons and smuggling of migrants (2010–15) which encompassed capacity building for law enforcement agents and awareness raising, as well as measures to provide victims of trafficking with shelters. It also noted the Government’s information that, given the high number of migrant workers in certain sectors such as services, plantations, construction, manufacturing and domestic work, the Government had signed Memorandum of Understanding (MOUs) with 13 countries of origin to regulate the employment and recruitment of migrant workers, including a specific MOU on migrant domestic workers.

While noting the policies and programmes adopted by the Government to address trafficking in persons, as well as a number of cases filed under the Anti-Trafficking in Persons Act, the Committee noted the concern expressed by several speakers regarding the magnitude of this phenomenon. The Committee therefore urged the Government to reinforce its efforts to combat trafficking in persons. In this regard, it requested the Government to pursue its efforts to strengthen the capacity of the relevant public authorities, including the labour inspectorate, so as to enable them to identify victims and to deal effectively with the complaints received. In addition, it requested the Government to continue to take measures to provide victims of trafficking with adequate protection and compensation. Moreover, noting an absence of information in this regard, the Committee requested the Government to provide information on the specific penalties imposed on persons convicted under the Anti-Trafficking in Persons Act.

While noting the bilateral agreements signed between the Government of Malaysia and other countries to regulate the conditions of employment of migrant workers, the Committee noted with regret the absence of information from the Government on any additional measures taken to provide protection to the large number of migrant workers in the country. In this regard, the Committee noted the information provided by several speakers that workers who willingly entered Malaysia in search of economic opportunities subsequently encountered forced labour at the hands of employers or informal labour recruiters, through means of restrictions on movement, non-payment of wages, passport confiscation and the deprivation of liberty. The Committee recalled the importance of taking effective action to ensure that the system of employment of migrant workers did not place the workers concerned in a situation of increased vulnerability, particularly where they were subjected to abusive employer practices, which might cause their employment to be transformed into situations that could amount to forced labour. The Committee therefore urged the Government to take appropriate measures to ensure that, in practice, victims were not treated as offenders and were in a position to turn to the competent judicial authorities in order to obtain redress in cases of abuse and exploitation. Moreover, noting an absence of information on the number of prosecutions concerning the exploitative employment conditions of migrant workers, the Committee urged the Government to take immediate and effective measures to ensure that perpetrators were prosecuted and that sufficiently effective and dissuasive sanctions were imposed. The Committee encouraged the Government to continue to negotiate bilateral agreements with countries of origin, to ensure their full and effective implementation, so that migrant workers were protected from abusive practices and conditions that amounted to the exaction of forced labour once they were in the country, and to work with the countries of origin to take measures for their protection prior to departure.

The Committee requested the Government to accept a technical assistance mission to ensure the full and effective application of this fundamental Convention. It requested the Government to provide a detailed report to the Committee of Experts addressing all the issues raised by this Committee and the Committee of Experts for examination at its next meeting. The Committee expressed the hope that it would be able to note tangible progress in the application of the Convention in the very near future.

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

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

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

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

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

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the information provided by the Government in reply to its earlier comments and, in particular, the Government’s explanations concerning the participation of prisoners in joint venture schemes with private companies and the application of the provisions of Part V of the Prison Act governing employment of prisoners.

Articles 1 (paragraph 1), and 2 (paragraph 1), of the Convention. Freedom of career military personnel to leave their service. The Committee notes the provisions governing an optional retirement and resignation from the armed forces in the Regular Forces (Pensions, Gratuities and Other Benefits) Regulations, 1982, and the Queen’s Regulation for the Royal Navy (QRRN) communicated by the Government with its report. It also notes that, under regulation 51(1) of the Army and Air Force (Terms of Service) Regulations, 1961, the Armed Forces Council shall issue instructions setting out the conditions under which soldiers or airmen may be permitted to purchase their discharge. While having duly noted the Government’s statement in the report that instructions issued by the Armed Forces Council are classified as confidential and therefore cannot be communicated, the Committee nevertheless hopes that the Government will describe, in its next report, the conditions under which career soldiers or airmen may be permitted to purchase their discharge. Please also clarify whether career military officers can also exercise the right to purchase their discharge and, if so, describe the conditions.

Articles 1 (paragraph 1), 2 (paragraph 1), and 25. Trafficking in persons. The Committee notes the adoption of the Anti-Trafficking in Persons Act, 2007, which provides for the offence of trafficking in persons and related offences (sections 12–15) punishable with the penalties of imprisonment for a term of up to 20 years, and the establishment of the Council for Anti-Trafficking in Persons (sections 6–11), which shall perform the functions of coordinating the implementation of the Act and formulating the relevant policies and programmes. The Committee requests the Government to provide, in its next report, information on any legal proceedings which have been instituted against those responsible for trafficking, particularly under sections 12, 13 and 15 of the Act, indicating the penalties imposed on perpetrators. Please also supply information on the policies and programmes to prevent and suppress trafficking in persons adopted by the Council for Anti-Trafficking in Persons and on their application in practice.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Articles 1(1) and 2(1) of the Convention. Freedom of career military personnel to leave their service. In its previous comments, the Committee requested the Government to indicate the measures taken or envisaged to ensure that officers have the possibility to leave the service at their own request, before attaining the age of retirement, even when they are not yet entitled to retirement benefits. The Government indicates in its report that regulation 20(2) of the Regular Forces (Pensions, Gratuities and Other Benefits) Regulations 1982, provides for an optional retirement of officers before the age of retirement, and regulations 46 and 51(1) of the Army and Air Force (Terms of service) Regulations 1961, provide for the right of officers and soldiers to purchase a discharge, subject to rules and regulations of the Armed Forces Council. The Committee requests the Government to supply, with its next report, copies of the rules and regulations of the Armed Forces Council concerning the right of officers and soldiers to purchase a discharge, to which reference is made in regulation 51(1) referred to above. Please also provide copies of the provisions governing the resignation from the armed forces contained in the Regular Forces (Pensions, Gratuities and Other Benefits) Regulations, 1982, the Army and Air Force (Terms of service) Regulations 1961, and the Queen’s Regulation for the Royal Navy (QRRN), referred to in the Government’s report.

Article 2(2)(c). Work of prisoners for private companies. The Committee previously noted the Government’s indication in its report that participation in joint venture schemes with private companies is voluntary for prisoners, who sign a form of consent. It also noted an application form to be signed by a prisoner, in which a prisoner voluntarily applies for a job within the framework of the detention centre’s workshop.

The Committee notes the Government’s indication in its latest report that under section 48 of the Prison Act 1995, the minister may introduce a scheme for employment of prisoners outside prison premises, and that the Malaysia Prisons Department operates two kinds of joint ventures with private companies, one of them being in the form of workshop within the prison and the other using prison labour by the private company outside prison premises. In both cases prisoners are paid normal wages as agreed upon by the prison administration and the private company. The Government further indicates that, as regards the work of prisoners for private companies, standard conditions of work are applied: prisoners shall be paid normal wages as paid to free workers performing the same kind of work; they shall work eight hours a day and be given weekly rest and public holidays; they shall be provided with injury benefit insurance. The Government also states that prisoners working for private companies undergo periodical medical check-ups, private companies are required to provide healthy working conditions, and labour inspectors visit worksites outside prison premises, whereas prison workshops are inspected by the officers of the Prisons Department. The Government also confirms that prisoners may only be employed by private companies with their voluntarily given consent authenticated by their signatures on an application form. As regards the Committee’s concern expressed in its previous comments in connection with a workers’ declaration included in the abovementioned application form, according to which a prisoner will not make any accident-related claims while undertaking the job, the Government indicates that this practice belongs to the past and, at present, all prisoners working in prison workshops and with private companies are provided with insurance benefits.

While noting these indications with interest, the Committee requests the Government to provide, with its next report, a copy of Part V of the Prison Act, 1995, which governs employment of prisoners, as well as copies of the provisions governing the work of prisoners for private companies both inside and outside prison premises, and sample copies of the agreements concluded between the Prisons Department and private companies using prison labour.

Articles 1(1), 2(1) and 25. Trafficking in persons for the purpose of exploitation. Referring to its general observation under the Convention made in 2000, the Committee requests the Government to provide, in its next report, information on measures taken or contemplated to prevent, suppress and punish trafficking in persons for the purpose of exploitation, supplying, in particular, information on any penal proceedings which might have been instituted against those responsible for trafficking and on the penalties imposed.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information provided by the Government in reply to its earlier comments.

Articles 1(1) and 2(1) of the Convention. In its earlier comments, the Committee raised a question concerning the possibility for career military officers to leave the service. The Government indicates in its report that officers can opt to leave the service at the end of the agreed contract of their choice or at the retirement age. The Committee refers to paragraph 72 of its General Survey of 1979 on the abolition of forced labour, in which it observed that, under the Convention, career military servicemen who have voluntarily entered into an engagement cannot be deprived of the right to leave the service in peacetime within a reasonable period, either at specified intervals, or with previous notice, subject to the conditions which may normally be required to ensure the continuity of the service. The Committee therefore requests the Government to indicate the measures taken or envisaged to ensure that officers have the possibility to leave the service at their own request, before attaining the age of retirement, even when they are not yet entitled to retirement benefits. Please also provide copies of the legislation, rules and regulations governing the resignation from the armed forces.

Article 2(2)(c). The Committee previously noted the Government’s indications in its report concerning an agreement signed between the Prison Department and a private company concerning the employment of prisoners. The Government indicated that participation in joint-venture schemes with private companies is voluntary for prisoners, who sign a form of consent. The Committee has noted an application form to be signed by a prisoner, communicated by the Government with its latest report, in which a prisoner voluntarily applies for a job within the framework of the detention centre’s workshop.

As the Committee repeatedly pointed out, it is only when work or service is performed in conditions approximating a free employment relationship that work by prisoners for private companies can be held compatible with the explicit prohibition of the Convention; this necessarily requires the formal consent of the persons concerned, as well as further guarantees and safeguards covering the essential elements of a free labour relationship, such as the payment of normal wages and social security, occupational safety and health, etc. (see paragraphs 128-143 of the Committee’s General Report to the 89th Session of the International Labour Conference, 2001). The Committee has always emphasized that conditions approximating a free labour relationship are the most reliable indicator of the voluntariness of labour; such conditions would not have to emulate all of the conditions which are applicable to a free market, but in the areas of wages, social security, safety and health and labour inspection, the circumstances in which the prison labour is performed should not be so disproportionately lower than the free market that it could be characterized as exploitative.

The Committee therefore requests the Government to provide information on the conditions of work of prisoners working for a private company, supplying copies of relevant texts, as well as a copy of the agreement between the prison department and a private company referred to above. In connection with a workers’ declaration included in the abovementioned application form, according to which a prisoner will not make any accident-related claims while undertaking the job, the Committee requests the Government to describe, more particularly, the occupational safety and health conditions applicable to prisoners working for a private company, as well as the role of labour inspection in this area.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information provided by the Government in reply to its general observation on the Convention made in its report to the 87th Session of the International Labour Conference (1999) and to its previous direct request.

Articles 1(1) and 2(1) of the Convention.  1.  In its earlier comments, the Committee raised a question concerning the possibility for career military officers to leave the service. It noted the information provided by the Government concerning the different ages of retirement and the special circumstances for early retirement. The Committee requests the Government to provide information on the possibility for officers to leave the service at their own request, before attaining the age of retirement, even when they are not yet entitled to retirement benefits.

2.  The Committee previously noted the Government’s indication that doctors had to serve with the Government for a term of three years. The Committee would be grateful if the Government would supply, its next report, information on the application in practice of the provisions of the Medical Act, 1991 (No. 50), in this regard.

Article 2(2)(c).  3.  The Committee notes the Government’s indications in the report concerning an agreement signed between the Prison Department and a private company concerning the employment of prisoners. The Committee requests the Government to supply, with its next report, copies of such agreements and of the form of consent to be signed by prisoners. Please also provide information on the Prison Trust Fund, to which 10 per cent of the receipts from the said joint venture schemes is apportioned.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous comments: 1. The Committee notes with regret that no comprehensive report has been received from the Government since 1993 and that the report in 1998 consists simply of a statement that the Prison Department, Ministry of Home Affairs, Malaysia, has reaffirmed that the department does not practise forced labour, which is totally inadequate. Further to its General Report in 1998 (Report III, Part 1A, paragraphs 112 to 125), regarding especially Article 2(2)(c) of the Convention, the Committee again asks the Government to provide detailed information on the work of prisoners, particularly work performed for private employers, whether in the prison premises or outside. Please send any laws, by-laws or regulations governing the matter, as well as detailed information on the practical application. The Committee asks the Government to send detailed information on the application in law and practice of Article 1(1), Article 2(2)(a), (b), (c), (d), (e) as well as Article 25 of the Convention. 2. Referring to the general observation on the Convention made in its report to the 87th Session of the ILC (1999), the Committee requests the Government to include in its next report information as to the present position in law and practice as regards:

(i) whether there are prisons administered by private concerns, profit-making or otherwise;

(ii) whether any private prison contractors deploy prisoners to work either inside or outside prison premises, either for the account of the contractor or for that of another enterprise;

(iii) whether private parties are admitted by the prison authorities into prison premises of any kind for the purpose of engaging prisoners in employment;

(iv) whether employment of prisoners outside prison premises, either for a public authority or for a private enterprise, is allowed;

(v) the conditions in which employment under any of the above conditions takes place, in respect of remuneration (indicating the level and comparing it with minimum wage normally applicable to such work), benefits accruing (such as pension rights and workers' compensation), observance of occupational safety and health legislation and other conditions of employment (e.g. through labour inspection), and how those conditions are determined;

(vi) what the source of any remuneration is (whether from public or private funds) and for what purposes it must or may be applied (e.g. for the personal use of the prisoner or if it is subject to compulsory deductions);

(vii) for whose benefit is the product of prisoners' work and any surplus profit deriving from it, after deduction of overheads, and how it is disbursed;

(viii) how the consent of the prisoners concerned is guaranteed, so that t is free from the menace of any penalty, including any loss of privileges or other disadvantages following from a refusal to work.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes with regret that no comprehensive report has been received from the Government since 1993 and that the report in 1998 consists simply of a statement that the Prison Department, Ministry of Home Affairs, Malaysia, has reaffirmed that the department does not practise forced labour, which is totally inadequate.

Further to its General Report in 1998 (Report III, Part 1A, paragraphs 112 to 125), regarding especially Article 2(2)(c) of the Convention, the Committee again asks the Government to provide detailed information on the work of prisoners, particularly work performed for private employers, whether in the prison premises or outside. Please send any laws, by-laws or regulations governing the matter, as well as detailed information on the practical application.

The Committee asks the Government to send detailed information on the application in law and practice of Article 1(1), Article 2(2)(a), (b), (c), (d), (e) as well as Article 25 of the Convention.

[The Government is asked to report in detail in 1999.]

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the information provided by the Government in its report.

1. In its previous comments the Committee raised the question of the possibility for regular officers to leave the service. The Committee notes the information provided by the Government concerning the different ages of retirement and the special circumstances for early retirement.

The Committee would request the Government to provide information on the possibilities for an officer to leave the service on its own request, before attaining one of these different ages of retirement, even when he is not yet entitled to retirement benefits.

2. The Committee notes the Government's indication that doctors serve for a three-year period with the Government. The Committee looks forward to the Government's information on the practical application of the provisions of the Medical Act.

3. In its previous comments the Committee asked for information on the observation of the Malaysian Trade Union Congress (in 1989) to the effect that in certain cases prisoners are requested to work on farms and in other places of employment arranged by the prison authorities and individual employers concerned.

The Committee notes the Government's information in its report that 30 prisoners are currently engaged in farm work at the Institute Pemulihan Dadah, which is a drug prison catering for inmates convicted under the Dangerous Drugs Act. They work on the project on their own accord and receive remuneration and are entitled to one-and-a-half days' rest. The Prisons Department has embarked on a new approach, that is, initiating a joint venture scheme with the private sector under which the Prisons Department provides the labour force (inmates) and workshop premises (within the prison) and private companies provide for the machinery, raw materials, technical expertise and are responsible for marketing and sale of products as well as for insurance coverage and regular salaries to the inmates. The Government indicates that the remuneration is the same as for outside work taking into consideration the number of hours worked. It is apportioned 50 per cent to the Government, 40 per cent to the inmate and 10 per cent to the special trust fund. The Government adds that this scheme has three main advantages, mainly: better remuneration for the inmates, better training opportunities in more marketable skills, as well as revenue for the Government and Prison Trust Fund. The Committee notes that the Government plans to amend the prison legislation so as to enable convicted prisoners to work in private firms/factories outside the prisons, voluntarily and with remuneration, similar to that received by outside factory workers.

The Committee recalls that Article 2, paragraph 2(c), of the Convention explicitly prohibits that persons from whom work is exacted as a consequence of a conviction in a court of law be placed at the disposal of private individuals, companies or associations. These provisions of the Convention are not limited to work outside penitentiary establishments but apply equally in workshops operated by private undertakings inside prisons. Only work performed in conditions of a free employment relationship can be held not to be incompatible with this prohibition; this necessarily requires the formal consent of the person concerned and, in the light of the circumstances of that consent, guarantees and safeguards in respect of wages and social security that are such as to justify the labour relationship being regarded as a free one.

The Committee requests the Government to provide information on the manner in which the formal consent of the prisoner is guaranteed, including any instructions or other texts to this effect, as well as detailed information on remunerations paid in comparison with those paid to free workers doing similar work. It also would appreciate if the Government would provide a copy of the existing agreement for the Pemulihan Dadah Institute and of the joint venture scheme, as well as of any agreement under this scheme.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee again expresses regret at the Government's decision to denounce Convention No. 105 whose scope and principles are related to those of Convention No. 29.

It wishes to recall its comments on the following points:

1. In its previous direct requests, the Committee raised the question of the possibility for regular officers to leave the service. It notes the information provided by the Government in its report concerning the conditions for retirement, particularly early retirement. It also notes that no application for retirement has been denied.

The Committee asks the Government to complete its information on conditions for leaving the service, particularly in the case of full-time service, and on how they are applied in practice.

2. The Committee notes the information supplied by the Government in reply to its previous direct request concerning the maximum period of appointment in connection with Part VII of the Medical Act, 1971 (No. 50). It notes that the duration of appointment is subject to any restriction or condition imposed by the Minister of Health, after consultation with the Malaysian Medical Association.

The Committee asks the Government to supply information on any decisions taken by the Minister in this respect, particularly as regards the maximum period of appointment. It also asks the Government to provide information on the practical effect given to the provisions in question and on their periodic review.

3. In its previous direct request, the Committee asked for information on the observations of the Malaysian Trades Union Congress (in 1989) to the effect that in certain cases prisoners are requested to work on farms and in other places of employment arranged by the prison authorities and individual employers concerned.

The Committee notes the Government's statement in its report that it will reply in the near future.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

1. In its previous direct request the Committee noted that any officer may at any time apply to retire or resign his commission, and his application will be considered by the Armed Forces Council who shall advise the Yang Di Pertuan Agong, except where a state of emergency has been proclaimed or the officer concerned has undertaken to complete a specific period of full-time service, and that persons in other ranks may apply to retire or resign upon completion of their terms of service or at their own request provided that the application is approved by the competent authority. The Committee noted the Government's indication that consideration of application for retirement or resignation is at the discretion of the Armed Forces Council and that the criteria generally applied include the period of service, training and other factors which may have a bearing on the applicant. It further noted that the period of service is not necessarily linked to the training received during the applicant's military career. The Committee requested the Government to indicate the length of the period of full-time service which an officer may undertake to complete, and other factors which may have a bearing on his application, as well as, for recent years, the number of applications for resignation or retirement received, approved and denied, and the reasons for any denial.

The Committee notes the Government's information in its report that it will submit the Ministry of Defence reply upon receipt. The Committee looks forward to receiving the above requested information.

2. Referring to its previous direct requests, the Committee asked the Government to continue supplying information on the practical application of Part VII of the Medical Act of 1971 (Act No. 50) and Part VII of the Dental Act 1971 (Act No. 51) (requiring registered medical practitioners and dentists to assume a minimum appointment) and on any measures taken further to the periodic review of these provisions by the Government.

The Committee notes the Government's information in its report that after its five-year periodic review Part VII of the Dental Act 1971 (Act No. 51) is no longer enforced, but that Part VII of the Medical Act of 1971 (No. 50) requiring registered medical practitioners to assume a minimum three-year appointment determined by the Director-General of Health is still in force and is reviewed every five years. The Committee requests the Government to indicate the length of any maximum appointment provided for.

3. The Committee noted previously the statement of a Worker member of Malaysia at the Conference Committee in 1986 discussing Convention No. 105 that there had been a plan to use detainees for work in the plantations. The Committee requested the Government to comment on this allegation, particularly as regards any plans whereby detainees would be placed at the disposal of private employers.

The Committee notes the Government's indication in its report that it rejects these allegations and that it had neither thought nor planned to use detainees for work in plantations or other sectors or put them at the disposal of private employers. The Committee notes however the observations by the Malaysian Trades Union Congress according to which in certain cases prisoners are requested to work in farms and other places of employment arranged by the prison authorities and individual employers concerned. The Committee requests the Government to provide information in this regard as well as on any measures taken or envisaged to ensure observance of the Convention.