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

Minimum Age Convention, 1973 (No. 138) - Malaysia (Ratification: 1997)

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 matters raised in its previous direct request, which read as follows:

Article 2, paragraph 1, of the Convention. Minimum age for admission to employment or work. The Committee had previously noted that the provisions of the Children and Young Persons (Employment) Act, 1966, with regard to the minimum age for admission to employment or work, were not in conformity with the age specified by the Government when ratifying the Convention. Indeed, although the Government, at the time of ratifying the Convention, declared 15 years as the minimum age for admission to employment, section 2(1) of the Children and Young Persons (Employment) Act provides that no “child” – who is a person under 14, according to section 1(A) – shall be engaged in any employment. The Committee had also noted the Government’s information that a tripartite committee would review the labour legislation, taking into consideration the possibility of increasing the minimum age for admission to employment. The Committee had asked the Government to keep it informed of developments concerning this legislation review, especially with regard to the measures taken to bring the minimum age for admission to employment (14 years) in conformity with the one declared (15 years). The Committee noted the Government’s information that the review of the Children and Young Persons (Employment) Act is still ongoing and the Ministry of Human Resources will keep the ILO informed about the progress. It once again requests the Government to indicate any developments regarding the raising of the minimum age for employment or work to 15 years, as specified by the Government at the time of ratification.

Article 3, paragraphs 1 and 2. Minimum age for admission to, and determination of, hazardous work. With reference to its previous comments, the Committee noted that the relevant legislation does not contain any provisions prohibiting young persons under 18 years of age from being employed in types of work likely to jeopardize their health, safety or morals. The Committee noted the Government’s statement that efforts will be undertaken to ensure that Article 3 of the Convention is complied with. However, the Government will have to look into the implications that may arise if the minimum age for employment is increased to 18 years. The Committee recalled that at the time of ratifying the Convention, Malaysia specified 15 years as the minimum age for admission to employment or work. It reminded the Government that, by virtue of Article 3, paragraph 1, of the Convention, the minimum age for hazardous work shall not be less than 18 years. The Committee also reminds the Government that, by virtue of Article 3, paragraph 2, of the Convention, the types of hazardous work to which paragraph 1 of this Article applies, shall be determined by national laws or by the competent authority after consultations with the organizations of employers and workers concerned.

The Committee requests the Government to take the necessary measures to ensure that no person under 18 years of age is authorized to perform types of hazardous work, in accordance with Article 3, paragraph 1, of the Convention. The Committee also requests the Government to take the necessary measures to include in national legislation provisions determining types of hazardous work to be prohibited to persons below 18 years of age, in accordance with Article 3, paragraph 2, of the Convention. Finally, it asks the Government to provide information on the consultations held with the organizations of employers and workers concerned on this subject.

Article 3, paragraph 3. Admission to hazardous work as from 16 years. The Committee had previously noted that certain provisions of the Children and Young Persons (Employment) Act allow young persons of 16 years and above to perform types of hazardous work under certain conditions. The Committee reminded the Government that, under the terms of Article 3, paragraph 3, of the Convention, national laws or regulations may, after consultation with the organizations of employers and workers concerned, authorize the performance of types of hazardous work by young persons between 16 and 18 years of age, on condition that the health, safety and morals of the young persons concerned are fully protected and that they have received adequate specific instruction or vocational training in the relevant branch of activity. It also recalled that this provision of the Convention consists of a limited exception to the general rule of the prohibition placed upon young persons under 18 years of age, and not a total authorization for the performance of types of hazardous work from the age of 16 years. The Committee therefore requests the Government to provide information on the measures adopted to ensure that the performance of types of hazardous work by young persons between 16 and 18 years of age is only authorized in accordance with the requirements of Article 3, paragraph 3, of the Convention.

Article 7. Light work. The Committee had previously noted that section 2(2)(a) of the Children and Young Persons (Employment) Act of 1966, allows persons under 14 years of age to be employed in light work which is adequate to their capacity, in any undertaking carried on by their family. It had, however, noted that the legislation does not specify a minimum age for admission to light work. The Committee had reminded the Government that Article 7, paragraph 1, of the Convention, provides for the possibility of admitting young persons of 13 years of age to light work. The Committee had also recalled that, according to Article 7, paragraphs 2 and 3, the competent authority shall determine and prescribe the number of hours during which, and the conditions in which, such employment or work may be undertaken.

The Committee noted the Government’s statement that this matter will be considered, but it may be difficult to define “light work” in the legislation. With regard to the definition of light work, the Committee drew the Government’s attention to Paragraph 13(b), of the Minimum Age Recommendation, 1973 (No. 46). Paragraph 13(b) states that, in giving effect to Article 7, paragraph 3, of the Convention, special attention should be given to the strict limitation of hours spent at work in a day and in a week, and the prohibition of overtime, so as to allow enough time for education and training (including the time needed for homework), for rest during the day, and for leisure activities. The Committee, accordingly, once again requests the Government to take the necessary measure to ensure that national law and practice are in conformity with the requirements of the Convention on the following points: (i) that the minimum age of 13 years for light work be established by legislation; and (ii) that, in the absence of a definition of light work in the legislation, the competent authority should determine what is light work and should prescribe the number of hours during which, and the conditions in which, such employment or work may be undertaken.

Part V of the report form. The Committee noted the Government’s statement that statistical data is not available. It asks the Government to provide information on the application of the Convention in practice including, for example, statistics on the employment of children and young persons and extracts from the reports of inspection services, as soon as this information becomes available.

The Committee noted that efforts are under way for the tripartite committee set up by the Government to review all labour legislation, and to start reviewing the Children and Young Persons (Employment) Act, 1966. It also observed that the Government took note of the discrepancies between the legislation and the Convention and hopes to address these issues as soon as possible after consultations with the employers’ and workers’ organizations. The Committee strongly encourages the Government to redouble its efforts to ensure that, during its review of the 1966 Act, the tripartite committee will take into consideration the Committee’s detailed comments on the discrepancies between national legislation and the Convention. The Committee once again requests the Government to inform it of any progress made in the review of the 1966 Act in its next report and once again invites it to consider seeking technical assistance from the ILO.