Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

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 of 1966 (CYP Act), with regard to the minimum age for 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 CYP 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 provide information on developments concerning this legislative review, especially with regard to the measures taken to bring the minimum age for admission to employment (14 years) into conformity with the one declared (15 years). The Committee notes the Government’s information that the CYP Act does not outlaw child labour, but rather governs and protects children who work. The Committee recalls that, by virtue of Article 2, paragraph 1, of the Convention, no one under the age specified by the Government when ratifying the Convention shall be admitted to employment or work in any occupation. The Committee notes that, according to the Committee on the Rights of the Child in its concluding observations of 25 June 2007, Malaysia is still in the process of amending the CYP Act to provide better protection for working children (CRC/C/MYS/CO/1, paragraph 90). Noting that the Government has referred to the legislative review of the CYP Act for a number of years, the Committee requests the Government to take the necessary measures in the very near future to ensure that the minimum age for employment or work is raised 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. In its previous comments, the Committee had noted that the relevant legislation does not contain any provisions prohibiting young people under 18 years of age from being employed in types of work likely to jeopardize their health, safety or morals. The Committee had noted the Government’s statement that efforts would be undertaken to ensure that Article 3 of the Convention is complied with. In this regard, the Committee notes that, in its report, the Government refers to two prohibitions provided for in the CYP Act for children and young people: (i) managing or being in close proximity to machinery; and (ii) working underground. The Committee observes that section 2(5) of the CYP Act provides that no child or young person shall be, or required or permitted to be, engaged in any employment contrary to the provisions of the Factories and Machinery Act 1967 or the Electricity Act 1949 or in any employment requiring them to work underground. The Committee notes that section 1A(1) of the CYP Act defines a “child” as being any person who has not completed their 14th year of age, and a “young person” as being any person who has not completed their 16th year of age. The Committee once again reminds 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 once again 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 once again requests the Government to take the necessary measures to ensure that no one under 18 years of age is authorized to perform hazardous work, in accordance with Article 3, paragraph 1, of the Convention. Furthermore, the Committee requests the Government to take the necessary measures to include in national legislation provisions determining types of hazardous work to be prohibited to people below 18 years of age, in accordance with Article 3, paragraph 2, of the Convention. Finally, the Committee also once again requests the Government to provide information on the consultations held with the organizations of employers and workers concerned with this subject.

Article 3, paragraph 3. Admission to hazardous work as from 16 years. The Committee had previously noted that certain provisions of the CYP Act allow young people 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 people between 16 and 18 years of age, on condition that the health, safety and morals of the young people 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 people under 18 years of age, and not a total authorization for the performance of types of hazardous work from the age of 16 years. Noting the absence of information in the Government’s report on this point, the Committee requests the Government to take the necessary measures to ensure that the performance of types of hazardous work done by young people 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 CYP Act allows people 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 people of 13 years of age to light work. The Committee had also recalled that, according to Article 7, paragraph 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. 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. 146). 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 notes the Government’s information that the CYP Act permits children and young people to work in just about any establishment that adults can be found in, including hotels, bars and other places of entertainment, if their parents or guardian own or work in the same establishment. The Committee shares the concern of the Committee on the Rights of the Child, in its concluding observations of 25 June 2007, that the provisions of the CYP Act concerning light work permit, among other things, employment involving light work without detailing the acceptable conditions of performing such work (CRC/C/MYS/CO/1, paragraph 90). Accordingly, the Committee once again requests the Government to take the necessary measures 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.

Parts III and V of the report form. Application of the Convention in practice. The Committee notes the Government’s information that the responsibility of the enforcement of the CYP Act rests solely with the Ministry of Human Resources. The Ministry has a legal duty to ensure that employers comply with the minimum standards and hours of work, rest times and places of work. However, the Committee notes that the Committee on the Rights of the Child expressed concern, in its concluding observations of 25 June 2007, that the enforcement of Convention No. 138 remains weak (CRC/C/MYS/CO/1, paragraph 90).

Furthermore, the Committee once again notes the Government’s statement that statistical data is not available. In this regard, the Committee on the Rights of the Child expressed its regret at the lack of a national data collection system and at the insufficient data on working children. Accordingly, the Committee on the Rights of the Child recommended that Malaysia strengthen its mechanisms for data collection by establishing a national centre database on children (CRC/C/MYS/CO/1, paragraphs 25 and 26). The Committee requests the Government to take the necessary measures to ensure that the provisions giving effect to the Convention are effectively enforced. It also strongly urges the Government to take the necessary measures to ensure that sufficient data on the situation of working children in Malaysia is available. It once again 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 people and extracts from the reports of inspection services, as soon as this information becomes available.

The Committee also once again urges the Government to redouble its efforts to ensure that, during its review of the CYP Act by the tripartite committee set up for this purpose, due consideration is given to the Committee’s detailed comments on the discrepancies between national legislation and the Convention. The Committee once again requests the Government to provide information on any progress made in the review of the CYP Act in its next report and once again invites the Government to consider seeking technical assistance from the ILO.

[The Government is asked to supply full particulars to the Conference at its 98th Session and to reply in detail to the present comments in 2009.]