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Situation and Gap Analysis on Malaysian Legislation, Policies and Programmes, and the ILO Forced Labour Convention and Protocol

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Situation and Gap Analysis on Malaysian Legislation, Policies and Programmes, and the ILO Forced Labour Convention and Protocol Situation and gap analysis on Malaysian legislation, policies and programmes, and the ILO Forced Labour Convention and Protocol Situation and gap analysis on Malaysian legislation, policies and programmes, and the ILO Forced Labour Convention and Protocol _____________________________ This document was prepared by an inter-disciplinary team of consultants, including staff of the USDOL-funded Project “From Protocol to Practice: A Global Action on Forced Labour” (Bridge Project - MYS/16/50/USA), following extensive consultations conducted by the ILO with the social partners in 2018. Funding is provided by the United States Department of Labor under cooperative agreement number IL-27592-15-75-K—1. 100 percentage of the total costs of the project or program is financed with federal funds, for a total of 14,395,138 USD dollars (Bridge global project). This material does not necessarily reflect the views or policies of the United States Department of Labor, nor does mention of trade names, commercial products, or organizations imply endorsement by the United States Government. Table of Contents 1 Executive summary ............................................................................................................................. - 1 - 2 Background ......................................................................................................................................... - 5 - 2.1 Research objectives........................................................................................................................... - 6 - 2.2 Methodology and limitation of the analysis ..................................................................................... - 6 - 3 Analysis of forced labour situation in Malaysia ................................................................................... - 8 - 3.1 Nature and extent of forced labour in Malaysia ............................................................................... - 8 - 3.2 Groups and sectors particularly at risk ............................................................................................. - 8 - 4 Summary of relevant legislation and policies in Malaysia .................................................................. - 11 - 4.1 Federal Constitution of Malaysia .................................................................................................... - 11 - 4.2 Penal Code ...................................................................................................................................... - 12 - 4.3 Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 ........................................... - 12 - 4.4 Immigration Act 1959/63 ................................................................................................................ - 13 - 4.5 Passports Act 1966 .......................................................................................................................... - 14 - 4.6 Employment Restriction Act 1968 .................................................................................................. - 15 - 4.7 Private Employment Agencies Act 1981 ......................................................................................... - 15 - 4.8 Workmen’s Compensation Act (WCA) 1952 ................................................................................... - 16 - 4.9 Employment Act 1955 ..................................................................................................................... - 17 - 4.10 Minimum Wage Order 2016 ........................................................................................................... - 19 - 4.11 Workers’ Minimum Standard of Housing and Amenities Act 1990 ................................................ - 19 - 4.12 Occupational Health and Safety Act 1994 ....................................................................................... - 20 - 4.13 Industrial Relations Act 1967 .......................................................................................................... - 21 - 4.14 Trade Union Act 1959 ..................................................................................................................... - 21 - 4.15 The Contracts Act 1950 ................................................................................................................... - 22 - 5 Summary of findings of the gap analysis ........................................................................................... - 23 - 5.1 Forced labour definition .................................................................................................................. - 23 - 5.2 Penal sanctions ............................................................................................................................... - 25 - 5.3 National policy and plan of action .................................................................................................. - 25 - 5.4 Prevention ....................................................................................................................................... - 26 - 5.4.1 Awareness raising ........................................................................................................................... - 26 - 5.4.2 Coverage and enforcement of legislation applicable to all workers ............................................... - 27 - 5.4.3 Labour inspection and workplace monitoring ................................................................................ - 28 - 5.4.4 Recruitment and placement of migrant workers ............................................................................ - 28 - 5.4.5 Private and public sector due diligence .......................................................................................... - 30 - 5.4.6 Addressing the root causes of forced or compulsory labour .......................................................... - 31 - 5.5 Protection ........................................................................................................................................ - 31 - 5.6 Remedies, such as compensation and access to justice ................................................................. - 33 - 5.7 International cooperation .............................................................................................................. - 36 - 6 Conclusions and recommendations ................................................................................................... - 38 - Annex A: Text of the ILO instruments ........................................................................................................ - 46 - Forced Labour Convention, 1930 (No. 29) ................................................................................................... - 46 - Protocol of 2014 to the Forced Labour Convention, 1930 ........................................................................... - 46 - Forced Labour (Supplementary Measures) Recommendation, 2014 (No. 203) .......................................... - 49 - Annex B ILO supervision of the application of Convention No. 29 by Malaysia ......................................... - 53 - Observation - adopted 2016, published 106th ILC session (2017) ............................................................... - 53 - Direct Request (CEACR) - adopted 2016 ...................................................................................................... - 56 - Observation (CEACR) - adopted 2014, published 104th ILC session (2015) ................................................. - 56 - Observation (CEACR) - adopted 2013, published 103rd ILC session (2014) ................................................. - 59 - Direct Request (CEACR) - adopted 2013 ...................................................................................................... - 61 - Committee on the Application of Standards of the International Labour Conference ................................ - 62 - ACRONYMS ATIPSOM : Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 Bridge : From Protocol to Practice: A Bridge to Global Action on Forced Labour Project CAS : Committee on the Application of Standards CEACR : Committee of Experts on the Application of Conventions and Recommendations CPTPP : Comprehensive and Progressive Agreement for Trans-Pacific Partnership CSO : Civil society organization FOMEMA : Foreign Workers' Medical Examination G-to-G : Government-to-government ILO : International Labour Organization IRA : Industrial Relations Act LAB : Legal Aid Bureau LAC : Legal Aid Center MAPO : Anti-Trafficking in Persons and Anti-Smuggling of Migrants Council MEF : Malaysian Employers Federation MOHR : Ministry of Human Resources MOU : Memoranda of Understanding MTUC : Malaysian Trade Union Congress NAP : National Action Plan NAP-TiP : National Action Plan on Anti-Trafficking in Persons Roadmap : Roadmap towards Ratification of the Forced Labour Protocol SETF : Special Enforcement Task Force SUHAKAM : Human Rights Commission VDR : Visa with Reference VP(TE) : Visit Pass (Temporary Employment) WCA : Workmen’s Compensation Act - 1 - 1 Executive summary Malaysia is a signatory to various international human rights instruments, including the ILO fundamental Convention on Forced Labour (C29) which the country ratified in 1957. The Forced Labour Protocol (P29) that supplements ILO C29 is yet to be ratified by the country. P29 tackles issues that are relevant to Malaysia and emphasizes prevention and suppression of
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