Child Labour Laws in Malaysia
by Shamila Nair – 13th June 2020
In this world, this year, child labour is still allowed to exist. As of now, the hours of child labour stand at 141 million hours and counting. The International Labour Organisation (ILO) defines the term “child labour” as a work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development.
The ILO classifies this nature of work as:
- Work that is mentally, physically, or morally dangerous and harmful to children; and/or
- Interferes with their schooling by: depriving them of the opportunity to attend school; obliging them to leave school prematurely; or requiring them to attempt to combine school attendance with excessively long and heavy work.
The United Nations Convention on the Rights of Child came in force on 2 September 1990 (“Convention”).
Article 1 of the Convention recognises a child as a human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.
Malaysia is a state party to this Convention and has ratified it in 1995. Through Article 32 of the Convention, Malaysia, as a state party must take legislative, administrative, social and educational measures to ensure the implementation of the requirements under Article 32 itself.
This means, that when it comes to enacting laws concerning child labour, Malaysia must ensure the laws state the following:
- a minimum age or minimum ages for admission to employment
- appropriate regulation of the hours and conditions of employment
- appropriate penalties or other sanctions to ensure the effective enforcement of the requirements set out by Article 32 of the Convention.
In Malaysia, the Child Act 2001 (Act 611) (“Child Act”) which relates to the care, protection and rehabilitation of children defines a “child” as a person under the age of eighteen years; and in relation to criminal proceedings it means a person who has attained the age of criminal responsibility as prescribed under Section 82 of the Penal Code.
Section 82 of the Penal Code states:
“Nothing is an offence which is done by a child under ten years of age”.
Meanwhile, Section 1A (1) of the Children and Young Persons (Employment) Act 1966 (Act 350) (“CYPA”) that governs specifically on the issues of child employment in Malaysia defines “child” as a person under the age of fifteen years, while a “young person” means a person who has attained the age of fifteen years and under the age of eighteen years.
Generally, child labour is not permitted, but it is impossible to cease to exist altogether. Think about all the kids channel entertainment shows and the times some of you were cashiers for your family’s business over the weekends to earn extra cash so you could purchase a pair of sneakers you’ve been eyeing on or ice pops from the shop next door.
To regulate a child’s and young person’s nature of employment, Section 2 (2) CYPA has provided circumstances in which a Child may be engaged:
a. Employment involving light work suitable to the child’s capacity in any undertaking carried on by the child’s family;
b. Employment in any public entertainment, in accordance with the terms and conditions under the Act, of course.
c. Employment requiring the child to perform work approved or sponsored by the Federal Government or the Government of any state and carried on in any school, training institution or training vessel; and
d. Employment as an apprentice under a written apprenticeship contract approved by the Director General with whom a copy of such contract has been filed.
Meanwhile, Section 2(3) of the CYPA also lists out the nature of employment a “Young Person” may be involved in:
a. Any employment that is suitable to the young person’s capacity (whether or not the undertaking is carried on by the young person’s family);
b. (sorry there isn’t (b), it got deleted).
c. Employment in any office, shop including hotels, restaurants and stalls, godown, factory, workshop, store, boarding house, theatre, cinema or association.
d. Employment in any industrial undertaking suitable to his capacity; and
e. Employment on any vessel under the personal charge of the young person’s parent or guardian.
We have got another age limit for you to note. The age of admission to “light work” as defined under Section 2(2) (a) in the above shall not be less than thirteen years.
Definitions and interpretations are everything in the legal world. So, it would not be altogether unexpected to know that CYPA has introduced the definition of “light work”:
a. Works that are not likely to be harmful to health, mental or physical capacity.
b. Works that are not likely to prejudice attendance at school that includes any place of which teaches any religion, participation in vocational orientation or training programmes approved by competent authority or capacity to benefit from instruction received.
It is not okay for children to carry construction materials and handle machinery.
The CYPA also regulates the number of days and hours of work a child and young person can undertake.
Section 4 of the CYPA states that:
“No child or young person engaged in any employment shall in any period of seven consecutive days be required or permitted to work for more than six days.
Section 5 of the CYPA states that no child engaged in any employment shall be required or permitted:
a. To work between 8:00 pm to 7:00 am.
b. To work for more than three consecutive hours without a period of rest of at least thirty minutes.
c. To work for more than 6 hours a day or, if the child is attending school, for a period exceeding seven hours including hours spent in school.
d. To commence on any day without having had a period of not less than 14 consecutive hours free from work.
However, take note that Section 5(1) (a) of the CYPA will not apply to any child engaged in employment in public entertainment.
Thanks to the amendments that came in force on 14 January 2019, Section 14 of the CYPA now provides that any person who contravenes any of the provision under CYPA or who being the parent or guardian of a child or young person knowingly consent in any such contravention shall be guilty of:
i. an offence and shall be liable on conviction to imprisonment for a term not exceeding 2 years or to a fine not exceeding RM 50,000.00 or both and,
ii. in the case of a second or subsequent offence, shall be liable on conviction to imprisonment for a term not exceeding 5 years or to a fine not exceeding one RM 100,000.00 or both.
Let us now look at some statistics. According to the United Nations Children’s Fund (UNICEF) global database, the Sub-Saharan Africa has the largest proportion of child labourers.
Poverty and lack of education are certainly major contributors to child labour. In fact, in the world’s poorest countries, slightly more than one in four children are engaged in work that is potentially harmful to their health.
ILO has laid down the following policy priorities on the road to 2025 and 2030 to address the economic, social, cultural, and legal issues in order to end child labour and modern slavery:
1. Expanding access to free, quality public education, which helps break inter generational cycles of poverty.
2. Extending social protection systems; for those affected by sudden job loss, economic crisis, natural disasters, and poverty as these shocks can force household to resort to child labour as a coping mechanism.
3. Ensuring fair and effective migration governance; to prevent child labour among migrants.
4. Protecting vulnerable populations; in situations of conflict and disaster. Fragile situations caused by income shocks, breakdown in formal and family social support network, displacement can create elevated risk of child labour and modern slavery.
5. Addressing Debt Bondage. ILO reveals a very high prevalence of debt bondage as a means of coercion in Asia and Pacific region. More than half the victims of forced labour were in some form or debt bondage. The statistics capture cases of child forced labour in which involve working children working with or for their parents who are themselves in forced labour.
6. Strengthening legislation and enforcement. Laws will never suffice without enforcement.
7. Building the evidence base.
The worst forms of child labour recognised by ILO are:
- Trafficking of children
- Debt bondage
- Recruitment of children for use in armed conflict
- Use of child for production of pornography or pornographic performances
- Use of a child for drugs trafficking
- Any hazardous work
Are you doing your part to end child labour?
Follow the updates on any of these organisations in Malaysia that helps with the protection of children.
1. SUKA Society, a non-governmental organisation set up to protect and preserve the best interest in children.
2. Malaysian Association for the Protection of Children (MAPC).
3. SURIANA Welfare Society Malaysia, a non-governmental organisation in Malaysia
4. Protect and Save the Children, social organisation in Malaysia that focuses solely on the prevention, intervention and treatment of Child Sexual Abuse