a. Freedom of Association and the Right to Collective Bargaining

The law provides for the right of workers to form and join independent unions without previous authorization or excessive requirements and to conduct legal strikes, but it does not protect the right to collective bargaining or obligate employers to bargain. Trade unions claimed the lack of collective bargaining rights and divisions in the labor movement weakened workers’ leverage in negotiations. The law explicitly prohibits civil servants from bargaining collectively.

The law prohibits firing an employee for striking and voids any section of an employment contract that punishes a worker for striking. The commissioner of police has broad authority to control and direct public gatherings, including strikes, in the interest of national security or public safety.

According to the law, an employer cannot fire, penalize, or discriminate against an employee who exercises his or her union rights and cannot prevent or deter the employee from exercising such rights. Penalties for violations of laws protecting union and related worker rights included fines as well as legal damages paid to workers, and penalties were sufficient to deter violations. Dismissed employees, however, had difficulty proving antiunion discrimination. In August, according to media reports, Cathay Pacific Airways (Cathay) warned employees that they may be fired if they joined a city-wide general strike. Cathay’s cabin crew union head Rebecca Sy told the press in August that Cathay Dragon, a Cathay subsidiary, fired her after company officials showed her printouts of proprotest movement postings on her private Facebook account.

b. Prohibition of Forced or Compulsory Labor

The law does not prohibit all forms of forced or compulsory labor, nor do laws specifically criminalize forced labor. Instead, the SAR uses its Employment and Theft Ordinances to prosecute labor violations and related offenses. Penalties for these offenses were not sufficient to deter violations.

NGOs expressed concerns some migrant workers, especially domestic workers in private homes, faced high levels of indebtedness assumed as part of the recruitment process, creating a risk they could fall victim to debt bondage. Domestic workers in Hong Kong were mostly female and mainly came from the Philippines, Indonesia, and other Southeast Asian countries. The SAR allows for the collection of maximum placement fees of 10 percent of the first month’s wages, but some recruitment firms required large up-front fees in the country of origin that workers struggled to repay. Some locally licensed employment agencies were suspected of colluding with agencies overseas to profit from debt schemes, and some local agencies illegally confiscated the passports and employment contracts of domestic workers and withheld them until they repaid the debt.

SAR authorities stated they encouraged aggrieved workers to file complaints and make use of government conciliation services as well as actively pursued reports of any labor violations.

Also see the Department of State’s Trafficking in Persons Report at https://www.state.gov/trafficking-in-persons-report/.

c. Prohibition of Child Labor and Minimum Age for Employment

The law prohibits the worst forms of child labor. Regulations prohibit employment of children younger than 15 in any industrial establishment. The law prohibits overtime in industrial establishments with employment in dangerous trades for persons younger than 18. Children between 13 and 14 may work in certain nonindustrial establishments, subject to conditions aimed at ensuring a minimum of nine years of education and protection for their safety, health, and welfare.

The Labor Department effectively enforced these laws and regularly inspected workplaces to enforce compliance with the regulations. Penalties for violations of child labor laws include fines and legal damages and were sufficient to deter violations.

d. Discrimination with Respect to Employment and Occupation

The law and regulations prohibit employment discrimination based on race or ethnicity, disability, family status (marital status or pregnancy), or sex. The law stipulates employers must prove that proficiency in a particular language is a justifiable job requirement if they reject a candidate on those grounds. Regulations do not prohibit employment discrimination on the grounds of color, religion, political opinion, national origin or citizenship, sexual orientation or gender identity, HIV or other communicable disease status, or social status.

The government generally enforced these laws and regulations. In cases in which employment discrimination occurred, the SAR’s courts had broad powers to levy penalties on those who violated these laws and regulations.

Human rights activists and local scholars continued to raise concerns about job prospects for minority students, who were more likely to hold low-paying, low-skilled jobs and earn below-average wages. Experts assessed that a lack of Chinese-language skills was the greatest barrier to employment.

e. Acceptable Conditions of Work

The statutory minimum wage was below the poverty line for an average-sized household. There were many press reports regarding poor conditions faced by and underpayment of wages to domestic workers.

There is no law concerning working hours, paid weekly rest, rest breaks, or compulsory overtime for most employees. Several labor groups reported that employers expected extremely long hours, and the groups called for legislation to address that concern.

Laws exist to provide for health and safety of workers in the workplace. Workers may remove themselves from situations that endanger health or safety without jeopardy to their employment. Employers are required to report any injuries sustained by their employees in work-related accidents.

The government effectively enforced the law, and the Labor Tribunal adjudicated disputes involving nonpayment or underpayment of wages and wrongful dismissal. The number of labor inspectors was sufficient to deter violations except in the cases of nonpayment or underpayment of wages to and working conditions of domestic workers. Penalties for violations of the minimum wage or occupational safety and health violations include fines, payments of damages, and worker’s compensation payments. These penalties were sufficient to deter violations.

The Occupational Safety and Health Branch of the Labor Department is responsible for safety and health promotion, identification of unsafe conditions, enforcement of safety management legislation, and policy formulation and implementation; it enforced occupational safety and health laws effectively.

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a. Freedom of Association and the Right to Collective Bargaining

The Basic Law provides workers the right to form and join unions, but the Legislative Assembly has not passed legislation to regulate this right. Workers may join labor associations of their choice, but employers and the government reportedly wielded considerable influence over some associations. The law does not provide that workers can collectively bargain, and, while workers have the right to strike, there is no specific protection in the law from retribution if workers exercise this right. The law prohibits antiunion discrimination, stating employees or job seekers shall not be prejudiced, deprived of any rights, or exempted from any duties based on their membership in an association. The law imposes financial penalties for antiunion discrimination, but observers noted this may not be sufficient to deter discriminatory activity. The law does not require reinstatement of workers dismissed for union activity.

The law forbids workers in certain professions, such as the security forces, to form unions, take part in protests, or to strike. Such groups had organizations that provided welfare and other services to members and could speak to the government on behalf of members. Vulnerable groups of workers, including domestic workers and migrant workers, could freely associate and form associations, as could public servants.

Workers who believed they were dismissed unlawfully could bring a case to court or lodge a complaint with the Labor Affairs Bureau (LAB) or the CAC, which also has an Ombudsman Bureau to handle complaints over administrative violations. The bureau makes recommendations to the relevant government departments after its investigation.

b. Prohibition of Forced or Compulsory Labor

The law prohibits all forms of forced or compulsory labor. Penalties range from three to 12 years’ imprisonment, with the minimum and maximum sentences increased by one-third if the victim is younger than age 14. Observers previously noted these penalties generally were sufficient to deter the use of forced labor.

Children and migrants were vulnerable to sex and labor trafficking, including in construction and domestic work. The government investigated cases, but there were no convictions during the year.

Also see the Department of State’s Trafficking in Persons Report at https://www.state.gov/trafficking-in-persons-report/.

c. Prohibition of Child Labor and Minimum Age for Employment

A law prohibits minors younger than age 16 from working, although minors from ages 14 and 15 may work in “exceptional circumstances” if they get a health certificate to prove they have the “necessary robust physique to engage in a professional activity.” The law defines “exceptional circumstances” as: the minor (younger than age 16) has completed compulsory education and has the authorization of the LAB after hearing the Education and Youth Affairs Bureau’s opinions; minors between ages 14 and 16 may work for public or private entities during school summer holidays; minors of any age may be employed for cultural, artistic or advertising activities upon authorization of the LAB after hearing the Education and Youth Affairs Bureau’s opinions and when such employment does not adversely affect their school attendance. The law governing the number of working hours was equally applicable to adults and legally working minors, but the law prohibits minors from working overtime hours. According to the civil code, minors who are age 16 can acquire full legal capacity if they marry.

The law prohibits minors younger than age 16 from certain types of work, including but not limited to domestic work, employment between 9 p.m. and 7 a.m., and employment at places where admission of minors is forbidden, such as casinos. The government requires employers to assess the nature, extent, and duration of risk exposure at work before recruiting or employing a minor. These regulations serve to protect children from physically hazardous work, including exposure to dangerous chemicals, and jobs deemed inappropriate due to the child’s age.

The LAB enforced the law through periodic and targeted inspections, and prosecuted violators. Penalties were sufficient to deter violations.

d. Discrimination with Respect to Employment and Occupation

The law provides that all residents shall be equal before the law and shall be free from discrimination, irrespective of national or social origin, descent, race, color, gender, sexual orientation, age, marital status, language, religion, political or ideological beliefs, membership in associations, education, or economic background. Equal opportunity legislation states that women are to receive equal pay for equal work. The law prohibits discrimination in hiring practices based on gender or physical ability and allows for civil suits. Penalties exist for employers who violate these guidelines and the government generally enforced the law effectively.

Some discrimination occurred. According to official statistics, at the end of June, nonresident workers accounted for approximately 28 percent of the population. They frequently complained of discrimination in the workplace in hiring and wages.

e. Acceptable Conditions of Work

Local labor laws establish the general principle of fair wages and mandate compliance with wage agreements. The SAR does not calculate an official poverty line. The law provides for a 48-hour workweek, an eight-hour workday, paid overtime, annual leave, and medical and maternity care. The law provides for a 24-hour rest period each week. All workers employed in the SAR, whether under a term contract or an indefinite contract, are entitled to such benefits as specified working hours, weekly leave, statutory holidays, annual leave, and sick leave. It was not clear whether penalties were sufficient to deter violations. The law requires that employers provide a safe working environment, and the LAB sets industry-appropriate occupational safety and health standards. The law prohibits excessive overtime but permits legal overtime (a maximum of eight hours and irrespective of workers’ consent) in force majeure cases or in response to external shocks, at the discretion of the employer.

All workers, including migrants, have access to the courts in cases in which an employee is unlawfully dismissed, an employer fails to pay compensation, or a worker believes his or her legitimate interests were violated. If an employer dismisses staff “without just cause,” the employer must provide economic compensation indexed to an employee’s length of service.

The LAB provides assistance and legal advice to workers upon request, and cases of labor-related malpractice are referred to the LAB.

The LAB enforced occupational safety and health regulations, and failure to correct infractions could lead to prosecution. The number of labor inspectors was adequate to enforce compliance.

The law allows workers to remove themselves from hazardous conditions without jeopardy to their employment.

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a. Freedom of Association and the Right to Collective Bargaining

The law provides for limited freedom of association and for some categories of workers to form and join trade unions, subject to a variety of legal and practical restrictions. The law provides for the right to strike and to bargain collectively, but both were severely restricted. The law prohibits employers from interfering with trade union activities, including union formation. It prohibits employers from retaliating against workers for legal union activities and requires reinstatement of workers fired for union activity.

The law prohibits defense and police officials, retired or dismissed workers, or workers categorized as “confidential, managerial, and executive” from joining a union. The law also restricts the formation of unions to workers in “similar” trades, occupations, or industries. Foreign workers may join a trade union but cannot hold union office unless they obtain permission from the Ministry of Human Resources. In view of the absence of a direct employment relationship with owners of a workplace, contract workers may not form a union and cannot negotiate or benefit from collective bargaining agreements.

The director general of trade unions and the minister of human resources may refuse to register or withdraw registration from some unions without judicial oversight. The time needed for a union to be recognized remained long and unpredictable. Union officials expressed frustration about delays in the settlement of union recognition disputes; such applications were often refused. If a union’s recognition request was approved, the employer sometimes challenged the decision in court, leading to multi-year delays in recognizing unions.

Most private-sector workers have the right to bargain collectively, although these negotiations cannot include issues of transfer, promotion, appointments, dismissal, or reinstatement. The law restricts collective bargaining in “pioneer” industries the government has identified as growth priorities, including various high-technology fields. Public-sector workers have some collective bargaining rights, although some could only express opinions on wages and working conditions instead of actively negotiating. Long delays continued in the treatment of union claims to obtain recognition for collective bargaining purposes. The government also had the right to compel arbitration in the case of failed collective bargaining negotiations.

Private-sector strikes are severely restricted. The law provides for penal sanctions for peaceful strikes. The law prohibits general strikes, and trade unions may not strike over disputes related to trade-union registration or illegal dismissals. Workers may not strike in a broad range of industries deemed “essential,” nor may they hold strikes when a dispute is under consideration by the Industrial Court. Union officials claimed legal requirements for strikes were almost impossible to meet; the last major strike occurred in 1962.

The government did not effectively enforce laws prohibiting employers from seeking retribution for legal union activities and requiring reinstatement of workers fired for trade union activity. Penalties included fines but were seldom assessed and generally not sufficient to deter violations. In July the Federal Court upheld a lower-court ruling that two banks had promoted clerical staff to executive positions without giving them any executive powers in order to exclude the employees from the National Union of Bank Employees (Nube). The union’s lawyer called the decision “groundbreaking.”

Freedom of association and collective bargaining were not fully respected. National-level unions are prohibited; the government allows three regional territorial federations of unions–peninsular Malaysia, Sabah, and Sarawak–to operate. They exercised many of the responsibilities of national-level labor unions, although they could not bargain on behalf of local unions. The Malaysian Trade Unions Congress is a registered “society” of trade unions in both the private and government sectors that does not have the right to bargain collectively or strike but may provide technical support to affiliated members. Some workers’ organizations were independent of government, political parties, and employers, but employer-dominated or “yellow” unions were reportedly a concern.

The inability of unions to provide more than limited protection for workers, particularly foreign workers who continued to face the threat of deportation, and the prevalence of antiunion discrimination created a disincentive to unionize. In some instances, companies reportedly harassed leaders of unions that sought recognition. Some trade unions reported the government detained or restricted the movement of some union members under laws allowing temporary detention without charging the detainee with a crime. Trade unions asserted some workers had wages withheld or were terminated because of union-related activity.

b. Prohibition of Forced or Compulsory Labor

The law prohibits and criminalizes all forms of forced or compulsory labor. Five agencies, including the Department of Labor of the Ministry of Human Resources, have enforcement powers under the law, but their officers performed a variety of functions and did not always actively search for indications of forced labor. NGOs continued to criticize the lack of resources dedicated to enforcement of the law.

The government did not effectively enforce laws prohibiting forced labor in some cases, and large fines as penalties were not sufficient to deter violations. In July a court overruled an earlier labor department ruling that there was no remedy for undocumented domestic workers to pursue claims of unpaid wages and ordered an Indonesian domestic worker’s case against her employer to receive a full hearing. The Indonesian employee, filing her case under the pseudonym “Nona,” claimed her employer failed to pay her for five years. The executive director of the NGO Tenaganita stated, “with this precedent, there is hope for undocumented workers to seek redress in court.”

In 2018 the government established an Independent Committee on Foreign Workers to provide comprehensive reform plans to the government regarding foreign-worker management and labor policy. The committee presented its final report to cabinet in July with recommendations on streamlining policies related to foreign workers, but the report was not made public.

A variety of sources reported occurrences of forced labor or conditions indicative of forced labor in plantation agriculture, the fishing industry, electronics factories, garment production, construction, restaurants, and domestic service among both adults and children (also see section 7.c.).

Employers, employment agents, and labor recruiters subjected some migrants to forced labor or debt bondage. Many companies hired foreign workers using recruiting or outsourcing companies, creating uncertainty about the legal relationship between the worker, the outsourcing company, and the owner of the workplace, making workers more vulnerable to exploitation and complicating dispute resolution. Labor union representatives noted that recruiting agents in the countries of origin and in Malaysia sometimes imposed high fees, making migrant workers vulnerable to debt bondage.

In August three nonprofit organizations filed a formal complaint with a foreign government urging it to ban imports of products from FGV Holdings Berhad, a Malaysian palm oil company, due to reports of forced labor at FGV plantations. Another petition filed earlier in the year accused FGV of using child labor. An FGV spokesperson told media in August, “We are committed to ensure respect for human rights. We are very serious in handling this.” The trial of former deputy prime minister Zahid Hamidi for his role in a fraudulent scheme involving hundreds of thousands of Nepali workers seeking jobs in the country continued as of November. Private companies linked to the then deputy prime minister’s brother and brother-in-law reportedly charged Nepali workers more than RM185 million ($46.3 million) for medical tests and to submit visa applications during the prior five years. These medical and visa processing services increased the cost tenfold without offering additional protections or benefits. Zahid denied involvement in or knowledge of the scam, but the Malaysian Anticorruption Commission charged him in October 2018 with 45 counts of corruption, bribery, and money laundering, three of which concern RM3 million ($750,000) he allegedly received in bribes from a company that ran a visa center for Nepali workers. Critics of the former government had long characterized the foreign-worker recruitment system as corrupt.

Nonpayment of wages remained a concern. Passport confiscation by employers increased migrant workers’ vulnerability to forced labor; the practice was illegal but widespread and generally went unpunished. Migrant workers without access to their passports were more vulnerable to harsh working conditions, lower wages than promised, unexpected wage deductions, and poor housing. NGOs reported that agents or employers in some cases drafted contracts that included a provision for employees to sign over the right to hold their passports to the employer or an agent. Some employers and migrant workers reported that workers sometimes requested employers keep their passports, since replacing lost or stolen passports could cost several months’ wages and leave foreign workers open to questions about their legal status.

Also see the Department of State’s Trafficking in Persons Report at https://www.state.gov/trafficking-in-persons-report/.

c. Prohibition of Child Labor and Minimum Age for Employment

The law prohibits all of the worst forms of child labor. The law prohibits the employment of children younger than 14 but permits some exceptions, such as light work in a family enterprise, work in public entertainment, work performed for the government in a school or in training institutions, or work as an approved apprentice. There is no minimum age for engaging in light work. For children between the ages of 14 and 18, there was no list clarifying specific occupations or sectors considered hazardous and therefore prohibited.

The government did not effectively enforce laws prohibiting child labor. Those found contravening child labor laws faced penalties that were not sufficient to deter violations.

Child labor occurred in some family businesses. Child labor in urban areas was common in the informal economy, including family food businesses and night markets, and in small-scale industry. Child labor was also evident among migrant domestic workers.

NGOs reported that stateless children in Sabah were especially vulnerable to labor exploitation in palm oil production, forced begging, and work in service industries, including restaurants. Although the National Union of Plantation Workers reported it was rare to find children involved in plantation work in peninsular Malaysia, others reported instances of child labor on palm oil plantations across the country. Commercial sexual exploitation of children also occurred (see section 6, Children).

Also, see the Department of Labor’s List of Goods Produced by Child Labor or Forced Labor at https://www.dol.gov/agencies/ilab/reports/child-labor/list-of-goods .

d. Discrimination with Respect to Employment and Occupation

The law does not prohibit discrimination with respect to hiring; the director general of labor may investigate discrimination in the terms and conditions of employment for both foreign and local employees. The director general may issue necessary directives to an employer to resolve allegations of discrimination in employment, although there were no penalties under the law for such discrimination.

Employers are obligated to inquire into most sexual harassment complaints in a prescribed manner. Advocacy groups such as the Association of Women Lawyers stated these provisions were not comprehensive enough to provide adequate help to victims.

Discrimination in employment and occupation occurred with respect to women; members of national, racial, and ethnic minorities; and persons with disabilities. A code of practice guides all government agencies, employers, employee associations, employees, and others with respect to placement of persons with disabilities in private-sector jobs. Disability-rights NGOs reported that employers were reluctant to hire persons with disabilities. A regulation reserves 1 percent of public-sector jobs for persons with disabilities.

Migrant workers must undergo mandatory testing for more than 16 illnesses as well as pregnancy. Employers may immediately deport pregnant or ill workers. Migrant workers also faced employment discrimination (see sections 7.b. and 7.e.). Employers were unilaterally able to terminate work permits, subjecting migrant workers to immediate deportation.

Women experienced some economic discrimination in access to employment. Employers routinely asked women their marital status during job interviews. The Association of Women Lawyers advocated for passage of a separate sexual harassment bill making it compulsory for employers to formulate sexual harassment policies. The law prohibits women from working underground, such as in sewers, and restricts employers from requiring female employees to work in industrial or agricultural work between 10 p.m. and 5 a.m. or to commence work for the day without having 11 consecutive hours of rest since the end of the last work period.

The government reserved large quotas for the bumiputra majority for positions in the federal civil service as well as for vocational permits and licenses in a wide range of industries, which greatly reduced economic opportunity for minority groups (see section 6).

e. Acceptable Conditions of Work

The minimum wage applied to both citizen and foreign workers in most sectors, with the exception of domestic service (see below). The minimum wage rates were less than Ministry of Finance-published poverty income levels in Sabah and Sarawak.

Working hours may not exceed eight per day or 48 per week, unless workers receive overtime pay. The law specifies limits on overtime, which vary by sector, but it allows for exceptions. The law protects foreign domestic workers only with regard to wages and contract termination. The law excludes them from provisions that would otherwise stipulate one rest day per week, an eight-hour workday, and a 48-hour workweek. Instead, bilateral agreements or memoranda of understanding between the government and some source countries for migrant workers include provisions for rest periods, compensation, and other conditions of employment for migrant domestic workers, including prohibitions on passport retention.

In January 2018 employers became responsible for paying a levy for their foreign workers, a move designed to better protect low-wage foreign workers and to encourage the hiring of local employees. Previously, employers regularly passed the costs on to employees and withheld as much as 20 percent of a worker’s annual salary to cover the levy.

The Ministry of Human Resources began enforcing amendments to the Private Employment Agencies Act (PEAA) in 2018. The measure aims to make the cost of business too high for small-scale recruiting agencies that have been sources of abuses in the past. Employment agencies must now pay as much as RM250,000 ($62,500) to operate a business that recruits foreign workers, a significant increase from the RM1,000 ($250) required under the original PEAA. In addition, agencies must secure a guaranteed bank note for as much as RM250,000 ($62,500) that would be liquidated (and used for victim repatriation costs) if they are found to be in violation of the law. Under a new amendment, agencies found operating without a license face tough new penalties, including a RM200,000 ($50,000) fine and a maximum three years in prison, an increase from the previous RM5,000 ($1,250) fine.

Migrant workers often worked in sectors where violations were common, performed hazardous duties, and had no meaningful access to legal counsel in cases of contract violations and abuse. Some workers alleged their employers subjected them to inhuman living conditions and physically assaulted them. Employers of domestic workers sometimes failed to honor the terms of employment and subjected workers to abuse. Employers reportedly restricted workers’ movement and use of mobile telephones; provided substandard food; did not provide sufficient time off; sexually assaulted workers; and harassed and threatened workers, including with deportation.

Occupational health and safety laws cover all sectors of the economy except the maritime sector and the armed forces. The law requires workers to use safety equipment and cooperate with employers to create a safe, healthy workplace, but it does not specify a right to remove oneself from a hazardous or dangerous situation without penalty. Laws on worker’s compensation cover both local and migrant workers but provide no protection for migrant domestic workers.

The National Occupational Safety and Health Council–composed of workers, employers, and government representatives–creates and coordinates implementation of occupational health and safety measures. It requires employers to identify risks and take precautions, including providing safety training to workers, and compels companies with more than 40 workers to establish joint management-employee safety committees.

The Department of Labor of the Ministry of Human Resources enforces wage, working condition, and occupational safety and health standards. The government did not effectively enforce the law. The number of labor enforcement officers was insufficient to enforce compliance in businesses and households that employ domestic help. Department of Labor officials reported they sought to conduct labor inspections as frequently as possible. Nevertheless, many businesses could operate for years without an inspection.

Penalties for employers who fail to follow the law begin with a fine assessed per employee and can rise to imprisonment. Employers can be required to pay back wages plus the fine. If they refuse to comply, employers face additional fines per day that wages are not paid. Employers or employees who violate occupational health and safety laws are subject to fines, imprisonment, or both. Penalties were not sufficient to deter violations.

Employers did not respect laws on wages and working hours. The Malaysian Trade Union Congress reported that 12-, 14-, and 18-hour days were common in food and other service industries.

According Department of Occupational Safety and Health statistics, 127 workers died, 3,491 acquired a nonpermanent disability, and 131 acquired permanent disability in work-related incidents in the first half of the year.