Malaysia ratifies the International Labour Organisation Protocol on Forced Labour
28 March 2022
In an historic moment on 21 March 2022, the Malaysian Government through the Minister of Human Resources, Datuk Seri M. Saravanan delivered its ratification of the International Labour Organisation (‘
ILO’)
Protocol of 2014 (‘
the Protocol’) to the Forced Labour Convention, 1930 (No. 29) (‘
the Convention’) to the Director-General of the ILO.
The Protocol will come into force for Malaysia 12 months after the registration of its ratification by the Director-General of the ILO, i.e. on
21 March 2023.
In essence, by ratifying the Protocol, Malaysia will commit itself to take effective measures to suppress the use of forced or compulsory labour in the country.
This article provides an outline on the main obligations that Malaysia will assume by ratifying the Protocol.
What is forced or compulsory labour?
The Protocol adopts the definition of ‘forced or compulsory labour’ in Article 2 of the Convention and means “
all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”
However, the following are not regarded as forced or compulsory labour for the purposes of the Convention:
- work or service under compulsory military service laws for work of a purely military character;
- work or service forming part of the normal civic obligations of the citizens of a fully self-governing country;
- work or service by any person as a consequence of a conviction in a court of law, provided that such work or service is supervised and controlled by a public authority and that the person is not hired to or placed at the disposal of private individuals, companies or associations;
- work or service undertaken in cases of emergency, e.g. in the event of war or a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in any circumstance that would endanger the existence or the well-being of the whole or part of the population; and
- minor communal services performed by the members of the community in the direct interest of the said community, provided that the members of the community or their representatives have the right to be consulted as to the need for such services.
Main obligations under the Protocol
The main obligations assumed by Malaysia under the Protocol are summarised below.
Article 1
To take effective measures to prevent and eliminate the use of forced or compulsory labour, provide to victims protection and access to appropriate and effective remedies, such as compensation, and to sanction the perpetrators of forced or compulsory labour.
To develop a national policy and action plan for the effective and sustained suppression of forced or compulsory labour in consultation with employers’ and workers’ organisations in a systematic and coordinated manner as between the competent authorities, employers’ and workers’ organisations and other groups concerned, as appropriate.
Article 2
The measures to be taken to prevent forced or compulsory labour shall include:
- educating and informing people, especially those particularly vulnerable, in order to prevent their becoming victims of forced or compulsory labour;
- educating and informing employers, in order to prevent their becoming involved in forced or compulsory labour practices;
- making efforts to ensure the coverage and enforcement of legislation relevant to the prevention of forced or compulsory labour apply to all workers and all sectors of the economy;
- making efforts to ensure that labour inspection services and other services responsible for the implementation of relevant legislation are strengthened;
- protecting persons, in particular migrant workers, from possible abusive and fraudulent practices during the recruitment and placement process;
- supporting due diligence by both the public and private sectors to prevent and respond to risks of forced or compulsory labour; and
- addressing the root causes and factors that heighten the risks of forced or compulsory labour.
Article 3
Take effective measures to identify, release, protect, recover and rehabilitate victims of forced or compulsory labour, and provide other forms of assistance and support.
Article 4
To ensure that all victims of forced or compulsory labour, regardless of their presence or legal status in the country, have access to appropriate and effective remedies, such as compensation.
Take the necessary measures, in accordance with the basic principles of its legal system, to ensure that competent authorities are entitled not to prosecute or impose penalties on victims of forced or compulsory labour for their involvement in unlawful activities which they have been compelled to commit as a direct consequence of being subjected to forced or compulsory labour.
Article 5
To cooperate with other Members to ensure the prevention and elimination of all forms of forced or compulsory labour.
Indicators of forced or compulsory labour
To assist civil society and stakeholders, the ILO’s Special Action Programme to Combat Forced Labour has identified 11 indicators as to the possible existence of forced or compulsory labour:
- Abuse of vulnerability
- Deception
- Restriction of movement
- Isolation
- Physical and sexual violence
- Intimidation and threats
- Retention of identity documents
- Withholding of wages
- Debt bondage
- Abusive working and living conditions
- Excessive overtime
An elaboration of each of these indicators is contained in a booklet ‘ILO Indicators of Forced Labour’, available
here.
Comments
There is no doubt that several of the indicators of forced or compulsory labour exist in some employment relationships in Malaysia, particularly in relation to migrant and domestic workers. The ratification of the Protocol is a commendable initiative by the Malaysian Government, and is in line with increased awareness globally on the importance of ESG compliance.
It is hoped that going forward, meaningful and concrete efforts will be taken to eliminate, or at least mitigate, the scourge of forced or compulsory labour in Malaysia.
Article by Siva Kumar Kanagasabai (Partner) and Trishelea Sandosam (Partner) of the Employment Practice of Skrine.