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Observation (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention (n° 29) sur le travail forcé, 1930 - Malaisie (Ratification: 1957)
Protocole de 2014 relatif à la convention sur le travail forcé, 1930 - Malaisie (Ratification: 2022)

Autre commentaire sur C029

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Articles 1(1), 2(1) and 25 of the Convention. 1. Vulnerable situation of migrant workers with regard to the exaction of forced labour. The Committee previously noted that the Department of Labour had taken various measures to protect migrant workers. For example, a mechanism for recruitment of foreign workers was established on a government to government (G to G) basis, in order to prevent forced labour practices. The Government stated that the G to G mechanism did not involve agents, third parties, middlemen, private employment agencies or other recruitment agents of both countries, but was conducted through the departments appointed by the two countries. Moreover, the Government introduced a standard bilingual contract of employment for all foreign workers as well as a Standard Operating Procedure which requires employers to pay wages to workers through their bank accounts and to obtain insurance coverage for foreign workers. The Government also indicated that the Special Enforcement Team (SET) conducted routine inspections and investigated complaints related to forced labour. However, the Committee noted that, according to the Report of the United Nations Special Rapporteur on trafficking in persons, especially women and children, of 2015, workers, including domestic workers, were recruited through fraud and deception about the type and conditions of employment by recruitment agents in Malaysia and in source countries. Most commonly they were exploited through breaches of contract, payment of excessive recruitment and immigration fees, reduction or non-payment of salary, excessive working hours, a lack of rest days and conditions akin to debt bondage and servitude. Practices of employers withholding passports were also reportedly common. This report further indicated that irregular migrants wanting to report abuse risked exposing themselves to the real danger of being charged for the offence of “irregular entry or stay” and would be detained and ultimately deported.
The Committee notes the Government’s information in its report that, from 2016 to 2017, the labour inspectorate detected 132 cases related to forced labour and imposed fines of 347,000 Malaysian ringgit (MYR) in total (around US$83,847). The prevalent indicators for forced labour in the identified cases were unpaid wages and physical abuse of workers. The Government states that, within the framework of the G to G mechanism, memoranda of understanding (MoUs) were signed and implemented with Bangladesh, Cambodia and Indonesia. In addition, the Government is moving towards the implementation of a General Guidelines on Recruitment, Employment and Repatriation of Foreign Domestic Workers instead of MoUs with source countries. The Government also establishes two G to G online systems for the application of employment of foreign workers: the Foreign Worker Management System (SPPA) for Bangladesh and the Integrated Foreign Workers Management System (ePPAx) for other countries, aimed at preventing the involvement of irresponsible third parties.
The Committee also notes from a 2017 report entitled Risks and rewards: Outcomes of labour migration in South-East Asia – Key findings in Malaysia, jointly produced by the ILO and the International Organization for Migration (IOM), that the average migrant in Malaysia works long hours (ten hours per day), nearly every day (6.2 days per week) for pay that is below the minimum wage (US$286). Moreover, among the labour rights violations faced by migrant workers, coercive employment practices, such as retention of legal documents and excessive overtime, were the most prevalent types. The vulnerability of migrant workers to these abuses is intensified by the lack of fair, efficient and accessible means to resolve complaints (page 3). According to a report entitled Protected or put in harm’s way? Bans and restrictions on women’s labour migration in ASEAN countries, jointly published by the ILO and UN Women in 2017, due to the combination of continued high employer demand for domestic workers and a country of origin ban on recruiting them, Cambodian migrant domestic workers in Malaysia reported that recruiters did not allow them to return home and employers forced them to sign contract extensions under threat of not receiving their salary. The report indicates that the threat has significant repercussions for workers, as the lump sum of two years of wages is often paid at the end of a contract (pages 40–41).
While taking note of the measures taken by the Government to protect migrant workers, the Committee notes with deep concern the persistence of labour rights violations and the continued abusive working conditions of migrant workers that amount to forced labour, such as passport confiscation by employers, wage arrears, long working hours and forced contract extension. The Committee therefore once again urges the Government to strengthen the measures to ensure that migrant workers, including migrant domestic workers, are fully protected from abusive practices and conditions that amount to forced labour. It requests the Government to continue providing information on the measures taken in this regard, including information on the implementation of the Government to Government mechanisms for recruiting foreign workers as well as on other bilateral agreements signed with countries of origin. The Committee further requests the Government to continue to provide information on the activities undertaken by the Special Enforcement Team and other monitoring agencies to combat forced labour and the results achieved.
2. Trafficking in persons. The Committee previously noted that the National Action Plan to Combat Trafficking in Persons for the period of 2016–20 (NAP 2016–20) was adopted. The Government concluded an MoU with Thailand in combating trafficking in persons which particularly focuses on protection of victims of trafficking, law enforcement cooperation and the repatriation process. Moreover, from 2012 to 2015, 746 persons were arrested in 550 cases related to trafficking in persons involving 1,138 victims. The Committee also noted from the Report of the Special Rapporteur on trafficking in persons that, various awareness-raising campaigns and training sessions were carried out in this regard. Moreover, a directive to investigate all cases of trafficking involving foreign nationals under the Anti-Trafficking Act of 2007, as amended in 2010 and renamed as the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act (Anti-Trafficking Act), was issued. A government policy allowing victims of labour trafficking to remain and work legally in Malaysia was also adopted in 2014. However, the Special Rapporteur indicated that the effective and swift investigation of offences under the Anti-Trafficking Act was hampered by a number of factors such as the limited coordination among enforcement agencies and the lack of skills to handle cases of trafficking as well as corruption of law enforcement officers. Moreover, the shelters run by the Ministry of Women, Family and Community Development were equivalent to detention centres where trafficked persons were treated as criminals in custody rather than victims.
The Committee notes the Government’s information that the Anti-Trafficking Act was amended in 2015 with a more victim-centred approach, regarding permission to move freely, permission to work, provision of allowance and payment of compensation. Several implementing regulations were accordingly adopted in 2016 and 2017. Moreover, the monitoring of the Act is under the purview of the Council for Anti-Trafficking in Persons and Anti-Smuggling of Migrants (MAPO), consisting of governmental agencies and NGOs. The MAPO includes five committees: legislative committee, enforcement committee, protection and rehabilitation committee, special committee to monitor labour trafficking and media, and publicity committee. In December 2016, the High Level Committee of MAPO approved the establishment of a multi-agency task force in order to strengthen the cooperation between enforcement agencies in investigation and information sharing. The Committee also notes that 147 convictions of trafficking were handed down in 2017, compared to 100 in 2016. Additionally, a total of 18 individuals (employers) were convicted for unlawful passport retention under the Passport Act of 1966, which provides for penalties of imprisonment of not more than five years or a fine of MYR10,000 or both. Furthermore, in 2017, 675 victims were identified and received appropriate assistance, of which 134 were granted permission to move freely, 11 were granted permission to work and the rest were repatriated to their countries of origin. The Committee further notes that the NAP 2016–20 was developed with multi-agency commitment, focusing on measures at the regional and international levels.
Moreover, the Committee notes from the 2018 concluding observation of the UN Committee on the Elimination of Discrimination against Women (CEDAW) that Malaysia remains a destination country for trafficking of women and girls, including asylum-seeking and refugee women and girls, for purposes of sexual exploitation, begging and forced labour. The CEDAW is particularly concerned about the following: (i) the lack of a formal and uniform victim identification procedure, which may lead to the punishment of women and girls who have been trafficked for the violation of immigration laws; (ii) complicity among law enforcement officials, including those who reportedly accept bribes to allow undocumented border crossings, and impunity for those responsible, and those who were complicit in crimes resulting in abandoned camps for trafficked persons along the border between Malaysia and Thailand, which were discovered in May 2015; and (iii) the inadequate assistance provided to victims of trafficking (CEDAW/C/MAS/CO/3-5, paragraph 25). In light of the above information, the Committee requests the Government to continue its efforts to prevent, suppress and combat trafficking in persons, and to take the necessary measures to ensure that all persons who engage in trafficking and related offences, including complicit law enforcement officials, are subject to thorough investigation and robust prosecutions. In this regard, the Committee requests the Government to take measures to strengthen the capacities of the law enforcement bodies, to ensure that they are provided with appropriate training to improve the identification of the victims of trafficking and related support, as well as measures to ensure greater coordination among these bodies. It also requests the Government to continue providing information on the number of victims of trafficking who have been identified and who have benefited from adequate protection, and on the number of investigations, prosecutions and convictions in this regard. The Committee finally requests the Government to provide detailed information on the measures taken to implement the National Action Plan to Combat Trafficking in Persons (2016–20), as well as the results achieved.
The Committee is raising other matters in a request addressed directly to the Government.
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