Observation (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 182) sur les pires formes de travail des enfants, 1999 - Malaisie (Ratification: 2000)

Autre commentaire sur C182

Observation

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Article 4(1) of the Convention. Determination of types of hazardous work. In its previous comments under the Minimum Age Convention, 1973 (No.138), the Committee noted that the Department of Occupational Safety and Health had developed a list of types of hazardous work prohibited to persons under the age of 18 years and that it was undergoing legal process for enactment.

The Committee notes the Government’s information in its report that the Children and Young Persons (Employment ) Act of 1966 was amended by the Children and Young Persons (Employment ) (Amendment ) Act of 2019 (CYP Amendment Act of 2019). It notes that section 3(b)(1A) of the CYP Amendment Act of 2019 prohibits the employment of children and young persons under the age of 18 years in hazardous work. The Committee notes with satisfaction that the Fourth Schedule of the CYP Amendment Act of 2019 lists over 25 types of hazardous work prohibited to children and young persons. This list includes: work related to machines, installations and other equipment; work conducted in hazardous environments, such as underground work, underwater or work in a confined space, work at heights, in dusty environments, in extreme weather conditions, manual handling, lifting, carrying or pushing heavy load; work that is exposed to biological hazards such as in laboratories, slaughterhouse, meat processing place or storages; construction work, work in the timber industry, petroleum platforms; and work as a lifeguard, in fishing activities, and work in water treatment plants. It also notes that section 3(c)(2B) of the CYP Amendment Act of 2019 prohibits children and young persons from engaging in employment specified in the Fifth Schedule of CYP Amendment Act of 2019 which contain seven activities, including engaging in prostitution or any work related to pornography, the production or sale of alcoholic beverages, lotteries and gambling activities, and for the production and trade of drugs and narcotics. The Committee requests the Government to provide information on the application in practice of sections 3(b)(1A) and 3(c)(2B) of the CYP Amendment Act of 2019, indicating the number and nature of violations reported and penalties imposed for the offences related to the employment of children under 18 years in the hazardous occupations listed under the Fourth and Fifth Schedule.

Articles 3(a), 5 and 7(1). Worst forms of child labour, monitoring mechanisms and penalties. Trafficking. The Committee notes that the Government has not provided any specific information concerning the investigations, prosecutions and penalties applied for the offences related to the trafficking of children. Nevertheless, it states that the Anti-Trafficking in Persons and Anti-Smuggling of Migrants (ATIPSOM) Act of 2007 has been amended through the insertion of a new provision under section 14 (offence of trafficking in children) to specifically state that there is no need to prove the “means” element in child trafficking cases. With regard toits previous comments concerning the measures taken by the Task Force on Anti-Trafficking in Persons and Anti-Smuggling of Migrants (ATIPSOM Task Force) to prevent trafficking of children under the age of 18 years, the Government states that it provides intelligence and information to all enforcement agencies under the Council for Anti-Trafficking in Persons and Ant-Smuggling of Migrants (MAPO). Moreover, according to the data provided by the Government, from 2019 to 2022, 57 child victims of trafficking, including 4 nationals, were identified by the ATIPSOM Task Force.

The Committee further notes from the Report of the United Nations Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material of January 2019 that the scope and magnitude of the sale and trafficking of children across the borders with Thailand, Viet Nam, Indonesia and the Philippines and within Malaysia for purposes of sexual and labour exploitation is an issue of grave concern. This report further indicates that in practice, child trafficking cases and statistics on convictions are not separated from other human trafficking cases (A/HRC/40/51/Add.3, paragraph 8). The Committee therefore once again urges the Government to take the necessary measures to ensure that, in practice, thorough investigations and prosecutions are carried out for persons who engage in the trafficking of children, and that sufficiently effective and dissuasive sanctions are imposed. In this regard, the Committee once again requests the Government to provide information on the number of cases of trafficking of children under the age of 18 years identified, including by the ATIPSOM Task Force, and the investigations, prosecutions, convictions and penal sanctions applied in accordance with the provisions of the ATIPSOM Act.

Articles 5 and 7(2)(a) and (d). Monitoring mechanisms and effective and time-bound measures. Access to free basic education and identifying and reaching out to children at special risk. Migrant children. In its previous comments, the Committee noted that tens of thousands of migrant workers’ children worked in the palm oil plantations without regulated employment hours, as well as in family food businesses, night markets, small-scale industries, fishing, agriculture and catering. It noted that children of migrant workers, particularly children of Indonesian workers face particular challenges accessing education, as non-nationals are prevented from accessing public education.

In response to its previous comments, the Committee notes the Government’s information that the findings of the Employment Survey in oil palm plantations carried out in 2018 by the Ministry of Plantation Industries and Commodities in collaboration with the ILO, indicates the existence of forced and child labour in the plantation sector with 8.3 per cent of children involved in hazardous work. The Government states that it is committed to eliminate and combat forced and child labour in the country and that various initiatives have been taken in this regard, including: (i) making amendments to the Children and Young Persons (Employment) Act; (ii) strengthening of the labour inspection system in order to protect children of migrant workers and carrying out regular labour inspections in the plantation sector; (iii) carrying out information and dialogue sessions for employers in the plantation sector on their rights and responsibilities, on the best labour practices to prevent forced and child labour, on mechanization and safety issues; and (iv) establishing Technical Working Groups to address child labour issues and to provide guidance on national legislations and policies on child labour.

With regard to access to education of non-citizen children, the Government indicates that they are allowed to access education in the government or government-aided schools if they meet the criteria and conditions set under the Education Act. The Government has created guidelines for alternative learning centres and has encouraged the initiatives by the private sector and NGOS to provide education for children of migrant workers working in plantations as well as for children who are not eligible to be admitted to formal education. In addition, the Government has facilitated the establishment of community learning centres (CLCs) in the plantations in Sabah and Sarawak, in a collaborative effort by the plantation owners and the Indonesian Embassy. The CLCs provides primary and lower secondary education which is run in Indonesian national curriculum. The Committee notes the Government’s indication that as of 2022 there are 112 CLCs in Sabah (86) and Sarawak (16) which accommodate more than 9,500 children.

The Committee further notes from the ILO Press release of October 2022 that 34 labour officers of the Sabah Department of Labour were trained and equipped with information and techniques utilizing the ILO Facilitator’s Manual: Training for Malaysian inspectors on forced labour, child labour and gender-based discrimination, violence and harassment in the workplace. This Press release indicates that more frequent inspections will be undertaken by these inspectors to ensure that the employers are compliant with all laws and policies pertaining to labour. Noting that 8.3 per cent of children are involved in hazardous work in the palm oil plantations, the Committee urges the Government to continue its efforts to protect children of migrant workers from engaging in the worst forms of child labour, particularly by ensuring their unreserved access to quality free basic education. It also requests the Government to continue to take the necessary measures to strengthen the labour inspection system to effectively monitor the implementation of labour laws so as to receive, investigate and address complaints of alleged violations of the worst forms of child labour. The Committee requests the Government to provide information on the measures taken in this regard, as well as information on the number of children identified and withdrawn from hazardous work in the plantation sector and provided with education.

Articles 6 and 7(2). Programmes of action and effective and time-bound measures. Clauses (a) and (b). Preventing the engagement of children in the worst forms of child labour and removing them from these worst forms and ensuring their rehabilitation and social integration. Trafficking. The Committee notes the Government’s information that it has launched the third five-year National Action Plan on Trafficking in Persons (NAPTIP 3.0) 2021–25. It notes from the NAPTIP document that this national action plan focuses on nine programme areas with specific objectives, including combating child trafficking and providing victim-centred protection and assistance to victims of trafficking. This document also indicates that the Minister of Home Affairs provided funding support for three shelters for victims of trafficking and appointed three Victims Assistance Specialists (VAS) to carry out a 12-month pilot project in March 2019. This project was implemented to improve support services by assisting victims from the point of rescue, through the process of the criminal justice system and right up to repatriation, as well as to assist the enforcement officers and prosecutors in victim engagement and communication. During the 12-month pilot project, the VASs provided support services to a total of 72 victims. This project was further extended until March 2022. The Committee encourages the Government to strengthen its measures, within the framework of the National Action Plan to Combat Trafficking in Persons, 2021-25, to prevent trafficking of children under the age of 18 years, and provide for their removal from such situations and subsequent rehabilitation and social integration. It requests the Government to provide information on the concrete measures taken in this regard and on the results achieved in terms of the number of children reached through such measures.

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