Observation (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

In its previous comments, the Committee requested the Government to provide information on the measures taken to ensure that foreign workers (and their dependants) who are nationals of countries that have ratified the Convention receive the same compensation as that granted to national workers in the event of occupational accidents. The Government indicates in its last report that, while it understands the Committee’s concern, it is of the view that the current arrangement of separate workers’ compensation systems for local and foreign workers appears to function in a satisfactory manner and that the compensation payable to foreign workers is not inferior to that payable to Malaysian workers. The Government adds that a policy decision needs to be taken before the issue of non-conformity with the Convention is addressed.

The Committee regrets to note that the Government has not taken any measures to bring the national legislation into conformity with the Convention. It reiterates that the national legislation, which establishes, in case of employment injury, the principle of differing treatment between national and foreign workers is not consistent with the Convention. In Malaysia, in the event of an employment accident, benefits are provided through two distinct national laws. By virtue of the Employee’s Social Security Act, 1969, national workers are entitled to a pension, whereas according to the Workmen’s Compensation Act, 1952, foreign workers are entitled to a lump-sum payment. Furthermore, the conditions governing affiliation to insurance against employment accidents differ between national workers (compulsory insurance when earnings are below RM3,000) and foreign workers (exclusion from compulsory insurance of non-manual workers earning over RM500).

The Committee is therefore bound once again to recall that, by virtue of Article 1, paragraphs 1 and 2, of the Convention, each Member which ratifies the Convention undertakes to grant, without any condition as to residence, to the nationals of any other Member which has ratified the Convention who suffer employment injury in its territory, or to their dependants, the same treatment as that granted to its own nationals in respect of workers’ compensation. The Committee considers that, since the compensation payable to foreign workers under the Workmen’s Compensation Act is not considered to be inferior to that payable to national workers, all workers, whether they are nationals of Malaysia or foreign nationals, could be allowed to decide which of the two systems they prefer for their own personal coverage. Such a measure would be consistent with the fundamental principle established by the Convention, according to which States parties must implement the principle of equal treatment in respect of workmen’s compensation between their own nationals and foreign workers (nationals of any other Member which has ratified the Convention), and have to ensure that it is possible for foreign workers or their dependants who suffer employment injury and return to their countries of origin to receive the payments abroad under special arrangements. The Committee accordingly expresses the firm hope that the Government will re-examine the matter and provide information in its next report on the measures taken or envisaged to bring the national law and regulations into conformity with the Convention. It also requests the Government to provide detailed statistical information on the number and nationalities of foreign workers employed in the country.

[The Government is asked to reply in detail to the present comments in 2007.]