A Summary of Labour Legislation in Malawi. -1st Edition-

Transcription

1 A Summary of Labour Legislation in Malawi -1st Edition-

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3 A Summary of Labour Legislation in Malawi -1st Edition- Kalani Mbeye Malema

4 Copyright 2017 Kalani Mbeye Malema First edition 2017 All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or any information storage or retrieval system without permission from the copyright holder. The Author has made every effort to trace and acknowledge sources/resources/individuals. In the event that any images/information have been incorrectly attributed or credited, the Author will be pleased to rectify these omissions at the earliest opportunity. ISBN Published by: Kalani Mbeye Malema Ministry of Labour, Rumphi District Labour Office, P.O. Box 55, Rumphi, Northern Region, Malawi

5 Contents Forward Acknowledgements Preface Abbreviations i iii iv vii 1. The 1994 Constitution of the Republic of Malawi Commencement of the 1994 Republican Constitution Supremacy of the Constitution Constitutional Provisions on Labour Matters 2 2. The Public Service Act No. 19 of Aim of the Act Application of the Act The Public Service Regulations Characteristics of the Public Service Provisions for Fair Labour Practices Retirement from the Public Service Administration and Management of the Public Service Restriction on Termination of the Service of Public Officers Labour Relations Act No. 16 of 1996 (Cap. 54:01) Aims of the Act Application of the Act Freedom of Association Rights of Trade Unions and Employers Organizations Protection of Employees Protection of Organisations Trade Unions and Employers Organisations Registrar and Registration Rules of Registered Trade Unions and Employers Organisations Amalgamation of Organisations 20

6 3.5. Collective Bargaining and Organisational Rights Enterprise Level Bargaining Sectoral Level Bargaining Composition of the Industrial Council Collective Agreements Access to Employers Premises Trade Union Subscriptions Leave for Trade Union Activities Disclosure of Information Industrial Dispute Settlement Tripartite Labour Advisory Council The Industrial Relations Court Occupational Safety, Health and Welfare (OSHW) Act, No. 21 of Aim of the Act Application of the Act Duties and Responsibilities Of Employers to Employees Of Employees at Workplaces Of persons in control of workplaces in relation to harmful emissions Of Manufacturers or Suppliers with respect to articles and substances used at workplaces Health and Welfare Conditions to be Maintained at a Workplace Machinery Safety at a Workplace Health and Safety Conditions at a Workplace Dangerous Occurrences and Industrial Diseases Offences, Penalties and Legal Proceedings The Employment Act No. 6 of 2000 (Cap. 55:01) Aims of the Act Application of the Act Definitions of key words in the Act Fundamental Principles of Employment Employment (Prohibition of Hazardous Work for Children) Order of

7 5.5. Administration of the Act Powers of Labour Officers Identity Cards and Obstruction of Labour Officers. 80 Employee s Right to Lodge Labour Complaint Assistance to Small Enterprises Conditions of Employment: Contract of Employment other than Contract for Employment Rights and Responsibilities related to Probationary Period Employer s responsibilities related to particulars of employment Termination of Contract Notice Service Period or Notice Pay Certificate of Termination Transfer of Contracts Employment Rights in respect of Insolvent Employer The Employment (Amendment) Act No. 27 of Hours of Work and Leave Hours of work Forms of Overtime and their Payment Rates Provided Leave Forms Continuous and Seasonal Employment Employment Wages Rights Related to Wage Payments Rights Related to Wage Deductions Setting of Minimum Wages Discipline and Dismissal Disciplinary Actions other than Dismissal Forms of Dismissals Unfair Dismissal Summary Dismissal Constructive Dismissal 98

8 5.11. Redundancy and/or Retrenchment Workers Compensation Act No. 7 of 2000 (Cap. 55:03) Aim of the Act Application of the Act Meanings of some key terms used in the Act Eligibility for Compensation Compensation Amounts for Injury caused Calculation and Distribution of Compensation Medical Aid Expenses Procedure for Obtaining Compensation Establishment of the Workers Compensation Trustee Board (WCTB) Administration of the Act Establishment of Workers Compensation Tribunal (WCT) Establishment of Workers Compensation Fund (WCF) Types of Incapacities Other than Death Dual System of Claim Settlement Workers Compensation and Common law Damages The Pension Act No. 21 of Commencement of the New Pension Law Pension Objectives Application of the Pension Act Contributory National Pension Scheme Mandatory duties of Employer Minimum Monthly Pension Contributions Employee s (fund member s) rights with respect to access to fund information Pension fund benefits and their payments Pension key stakeholders Roles of Labour Officers under the Pension Act Assessments under Section 91 of the Act. 131 References 136 About the author 139

9 Forward T he Government of Malawi makes various laws and gazettes them for everyone s accessibility. This implies that accessing and knowing country laws are forms of a citizen s right regarding accessibility to information. The Government has a role to sensitize the general public, on various laws, especially the employers and employees with respect to labour laws. The awareness role about labour laws can be achieved through use of various means and processes such as the issuance of notices and/or letters; conducting direct awareness meetings; social dialogue meetings with employment key social partners; through labour disputes settlement processes and through use of targeted publications. Note that by a publication means, it may include the press releases, magazines or newsletters etc. However the role of making country laws known to the general public is not only the government s role but also the private sector s role through individual authors who can equally publish book materials on laws for knowledge by the general public. Up until now there seems to be few published labour law books or almost no any of such books that may be far much user friendly to the general public. Thus, this book, A Summary of Labour Legislation in Malawi, seeks to fill this gap and provide the much required information on contents of labour laws through the use of summarized and user-friendly approaches in explaining and outlining all key provisions of the labour legislative Acts as contained in the Laws of Malawi volumes. I have personally seen just one or few published books on Malawi labour laws in circulation, the books that are far much different from this one in the sense that this book is unique because it has been presented to be more user friendly and to fit every ordinary individual reader and not only fitting those readers with a law study background. I have no doubt that most of the companies human resources officers who are not lawyers by profession, those who have not undergone any training regarding the usage and interpretation of labour laws will find this book easily understood and followed hence very useful for their day to day work. In the same vein, this book will be a far much user friendly guide especially to employers and employees. Furthermore, the book wholesomely, contains all the labour legislative Acts including the Public Service Act which is in most cases not treated or known as one of the country i

10 A Summary of Labour Legislation in Malawi - Kalani Malema labour laws. Finally the book makes references to relevant International Labour Organisation conventions in order to give a perspective of how our national labour laws have been developed to fit with the international labour standards. This initiated effort, by Kalani Mbeye Malema, the labour officer/inspector himself by profession, is most welcome and shows his command and interests that he has in the field of labour relations and his commitment to his profession. His work will undoubtedly contribute to the better understanding of the required country labour standards, the processes and procedures to be followed when staging legal strikes and pursuing workers compensation processes, for example. I therefore recommend it to all those who will use it. I also hope that this example of making the labour laws become user friendly and accessible to the professionals, key users as well as to the lay public members will be emulated by others. Signed: Wezi Kayira, Lawyer and former Principal Secretary for Labour ii

11 Acknowledgements I n the first place, I would like to express my sincere gratitude to Wezi Kayira, the former Malawi Director of Public Prosecutions and Principal Secretary for Labour who checked the book content professionally, endorsed and forwarded the book for publication as well as taking lead in guiding for all the necessary steps to be taken towards the book publication. Thank you for your comments and constructive feedback given about the book manuscript during our long day of discussions at Dunduzu Lodge in Mzuzu. You gave me the confidence and required support for this work to become a reality. Secondly, I would like to thank and acknowledge many other people for helping make this book a reality of which without them, this work would not have been promptly started and advanced. In this respect, special thanks should go to madam Glory Nkuna, the retired Regional Labour officer for North and my fellow workmates at Rumphi District Labour office as well as from other labour offices for their preliminary guidance and encouragements respectively for me to proceed with my unveiled plans of writing this book. Special thanks should go to Wafwile Musukwa, the Deputy Labour Commissioner for his direction with respect to the exclusion of the TEVET Act of 1999 in this book on reason that the Act is just one of the legal supporting and administrative tool to the labour legislation laws. In similar manners, Katoto Mtambo should be thanked for proofreading all the boxed texts. His feedbacks were very insightful. Finally, I wish to acknowledge my family, that is, my beloved wife, Modesta; my first born daughter, Brenda; and second born son, Duncan who demonstrated patience with a husband and a father respectively who was often busy reading and writing sometimes throughout the night. In addition, Modesta, my wife, has supported me throughout all my busy times, with her encouragement and trust. Thanks to Jockely General Mbeye, my uncle, a retired UNDP Advisory Specialist for SADC region who felt impressed with my work progress and encouraged me to continue working hard throughout my lifetime. May God bless you all! iii

12 Preface L abour Legislation constitutes labour laws. In Malawi, these laws are contained in Acts passed in Parliament and gazetted by Government. They are called Labour Legislation Acts. Each Legislation Act contains various numbered provisions known as sections. Provisions in Labour Legislation Acts were developed taking into consideration provisions on labour issues as contained in the 1994 Constitution of the Republic of Malawi and in various International Labour Organization conventions ratified by the Malawi Government. Furthermore, some labour cases decided in courts were also considered in developing such provisions. This means that the Republican Constitution, the adopted or ratified international laws and the court decided cases on labour matters are major sources of labour legislative laws in Malawi. This book edition: A Summary of Labour Legislation in Malawi is a summary of the 1994 Malawi Republican Constitution provisions on labour matters and of the key selected provisions from six Labour Legislation Acts that were passed by Malawi Parliament between 1994 and These six Labour Legislation Acts are: 1. Public Service Act (PSA) No. 19 of 1994; 2. Labour Relations Act (LRA) No. 16 of 1996; 3. Occupation Safety, Health and Welfare Act (OSHWA) No. 21 of 1997; 4. Employment Act (EA) No. 6 of 2000; 5. Workers Compensation Act (WCA) No. 7 of 2000; and 6. Pension Act (PA) No. 11 of The book is the 1 st edition that will precede a number of editions to be written in the future. I am convinced that it will be worthwhile to be producing such editions to accommodate new more amendments and enacted labour laws that are likely to be effected over time as the country continues developing, thereby encompassing various dynamism of issues including labour issues that may call for new laws to be enacted and regulated. In terms of the book target audience, it was within my interest and conviction to write this book targeting particularly three groups of users namely: First, the employees and employers including their organizational officials because they are the two major parties in every employment relationship who are directly affected by the enforcement effects of the provisions contained in the Labour Legislation Acts. As a result, this group, I hope, will be able to read iv

13 Preface and apply the contents of the book in their day to day actions and decisions within the world of work. Second, the Government labour officials, particularly labour officers, in the Ministry of Labour are a target because they always use provisions of labour Acts as their references in their day to day routine work of labour inspection and of labour disputes settlement, among others. Lastly, college students studying industrial relations as a course in Malawi may also find this book as a useful reference text for them to easily understand and analyse how and to what extent the labour relations are regulated by the Malawi Government. In addition, however, many other people from the general public are likely to find this book useful for their general reading and application; hence they are a general target audience. This is so because it is amongst the general public, who are not currently part of the three mentioned target groups, from where future prospective employees, employers and/or Government labour officers would come from hence my feel on why this book may be of much importance to some of them as well. The structure of the book is in two sets. One set, the main set, contains summarized provisions of the Acts. From each Labour Legislation Act, various summarized provisions grouped into related categories are outlined and presented. To avoid changing the meaning of the provisions, I tried utmost to maintain almost the same word usage. However, some few legal phrases and expressions were replaced to make the content more user friendly to most of the targeted audience members who may be without legal background. It should also be pointed here that, the fact that only selected provisions are outlined, does not mean that the rest provisions are not important. They are also equally important provisions of our labour laws. The second set is the texts included in the 14 boxes that have been inserted either in between the Act summary provisions or at the end/beginning of each Act outline. The box texts are: 1. mainly my own explanatory, descriptive and illustrative notes provided to expound and/or illustrate more on some of the processes and procedures provided for in the Acts. This has been done based on my own extensive work experiences. For instance, my ten years experience in the work of settling labour and/or industrial disputes and of conducting labour inspections as a labour officer/inspector in various workplaces in the country has made me to release that most of the employers and employees out there do not really know basic processes of workers compensation, procedures of staging a legal strike or lockout, formulas to compute some frequently handled payments at work such v

14 A Summary of Labour Legislation in Malawi - Kalani Malema as severance allowance, notice pay, leave pay, overtime payments just to mention a few; hence the inclusion of such notes in order for such problems to be eased amongst employers or employees who may find an opportunity to read this book. 2. some Law Commission amendment proposals and International Labour Organization conventions which were ratified by Malawi Government and whose relevant provisions in context of Malawian labour relations, were domesticated into our labour Acts. Furthermore, some provisions from the amendment gazettes which are supplementary provisions of the labour Acts have been included within their respective Acts amongst the first set. This was to ensure that readers access such amendments that would otherwise have been not easily accessed as they are usually contained in documents (the gazettes) separate from the principal legislative Acts usually mixed with other gezetted issues which may not be labour law issues. All in all, a summary containing provision of all labour Acts provides an opportunity for readers to access all the necessary labour standards from one book other than from multiple sources. Moreover, the summary is also part of the solution to a challenge whereby most of the general public in Malawi and indeed those key social partners in the employment relationship are usually not conversant with the Act provisions and their meanings due to the facts that some legislation Act booklets are bulky and that they are written using legal language thereby making it difficult for some of such key users especially those without formal training or legal background in law to use and understand meanings of such provisions correctly. Finally, this book is indeed a product of my own reflection to my experience regarding the extent of both the known and perceived challenges experienced by most members of the social partners in the employment relations in respect of their access right to the knowledge of labour law basics since the enactment of various labour legislation Acts following the multiparty democracy in Therefore, it is also within my own conviction that if the information contained in this book will result in enhancement of their understanding of key provisions of our country labour laws, I will consider my mission accomplished or feel more than satisfied to publish this book and its next editions. Kalani Mbeye Malema, 2017 Ministry of Labour vi

15 Abbreviations ACB ADMARC Cap. CPI CPS CNPS DHRMD EA ESCOM EGENCO ILO IRC ITUC LRA MACRA MANEB MERA MHC MHRC MoL MP MPSR NCPS OSH OSHWA PA PSA TLAC WCWorkers WCA WCF WCT WCTB WFCL WLSA Anti-Corruption Bureau Agricultural Development and Marketing Corporation Chapter Consumer Price Index Contributory Pension Scheme Contributory National Pension Scheme Department for Human Resources, Management and Development Employment Act Electricity Supply Corporation of Malawi Electricity Generation Company Malawi Ltd International Labour Organisation Industrial Relations Court International Trade Union Confederations Labour Relations Act Malawi Communication Regulatory Authority Malawi National Examination Board Malawi Energy Regulatory Authority Malawi Housing Corporation Malawi Human Rights Commission Ministry of Labour Member of Parliament Malawi Public Service Regulations National Contributory Pension Scheme Occupational Safety and Health Occupational Safety, Health and Welfare Act Pension Act Public Service Act Tripartite Labour Advisory Council Compensation Workers Compensation Act Workers Compensation Fund Workers Compensation Tribunal Workers Compensation Trustee Board Worst Forms of Child Labour Women and Law in Southern Africa vii

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17 1 The 1994 Constitution of the Republic of Malawi This Constitution repealed and replaced the 1966 Malawi Constitution which was not supreme over the legislative Acts of parliament Commencement of the 1994 Republican Constitution It provisionally came into force on 18 th May, Its period for provisional application was for one year (12 months). Hence it came into full force in May Supremacy of the Constitution The current, 1994 Constitution of the Republic of Malawi is the supreme law of the land unlike the old, 1966 Constitution of Malawi, which was not a supreme law of the land. Section 5 of the 1994 Constitution provides that any act of government or any law that is inconsistent (in contradiction) with the provisions of this Constitution shall, to the extent of such inconsistency, be invalid. This means that all provisions contained in all Malawian labour legislation Acts and in those other Acts passed by the Malawi Parliament must be in conformity with the provisions of the constitution for them to be valid laws in Malawi. Therefore, the Constitution is the supreme and main labour law source of reference in Malawi. In contrast, section 2 (2) of the 1966 Constitution had provided that the domestic legislation could override the protection offered by 1

18 A Summary of Labour Legislation in Malawi - Kalani Malema any law (including the Constitution law provisions) as long as the legislation in question was reasonably required in the interests of defense, public safety, public order or the national economy. This clearly means that the old Constitutional provisions were not supreme over the legislation Acts of parliament Constitutional Provisions on Labour Matters Peaceful settlement of disputes, 1. provides that the state shall strive to adopt mechanisms by which differences are settled through negotiations, good office, mediation, conciliation and arbitration. 2. The disputes are of different nature including labour disputes. 3. In case of labour disputes, labour offices are the primary good offices among others to mediate, conciliate and negotiate for the disputants to settle their differences. Forced labour, slavery and servitude 1. No person shall be subject to forced labour. 2. No person shall be subject to tied labour that amounts to servitude. 3. This section prohibits anyone to use slaves or forced labourers to work for him or her. 4. Employers are prevented from forcing anyone to work for them or for anybody. 5. ervitude refers to slavery where one is being forced to work for others without having any freedom. Fair and safe labour practices 1. Every person has the right to fair remuneration, and to fair and safe labour practices. 2. Every person has the right to form or not to form and to join or not to join trade unions. 3. Every person is entitled to fair wages and equal remuneration for work of equal value without distinction or discrimination of any kind, especially on basis of gender, disability or race. 4. The state through its mandated offices/institutions can take measures to ensure a person s right to withdraw labour. This is why every worker has the right to strike. 2

19 The 1994 constitution of the republic of malawi Box 1: The Malawi Law Commission Report of 2007, An Extract An Extract of the Malawi Law Commission Report The Malawi Law Commission Report of 2007 recommended section 31 of the 1994 Republican Constitution to be amended as follows: 1. Every person shall have the right to fair and safe labour practices. 2. Every person shall be entitled to fair wages and equal remuneration for work of equal value without distinction or discrimination of any kind, in particular on the basis of gender, disability or race. 3. Every employee shall have the right: to form and join a trade union; to participate in the activities and programmes of a trade union; and to strike. 4. Every employer shall have the right: to form and join an employer s organisation; and to participate in the activities and programmes of an employer s organization. 5. Every trade union and every employer s organization shall have the right: 1. to determine its own administration, programmes and activities; 2. to organize; and 3. to form and join a federation. 6. Every trade union, employer s organization and employer shall have the right to engage in collective bargaining. This, according to Law commission, would ensure (1) that the emphasis on the right to fair and safe labour practices is clearly seen and read as a provision for both employees and employers; (2) the rearrangement of similar issues being grouped together to avoid confusion i.e. issues of fair remuneration and wages to be in same subsection and issues of fair and safe labour practices in another subsection. The proposed amendment is not yet effected. 3

20 A Summary of Labour Legislation in Malawi - Kalani Malema Freedom of association, 1. provides that every person shall have the right to assemble and demonstrate with others peacefully and unarmed. 2. This means, peaceful and legal strikes and lockouts are allowed and supported by the law. 3. Further, it means that trade unions and employers associations and their activities are allowed and supported by the law. International law (section 211 as amended Constitution (amendment) 2001, provides that: 1. Any international agreement entered into after the commencement of the current republican constitution shall form part of the law of the Republic if so provided by or under an Act of parliament. 2. Binding international agreements entered into before the commencement of the constitution shall continue to bind the republic unless otherwise provided by an Act of Parliament. 3. Customary international law, unless inconsistent with this constitution or an Act of parliament, shall form part of the law of the Republic. Box 2: Malawi Parliamentary Acts on Ratification of International Laws Ratification of International Laws Provision by an Act of Parliament is through the process of ratification of an international law the Convention, for example, by a country. Two Acts of Parliament that provide for the international treaties, conventions and agreements accepted or whose Malawi become a signatory (those that deal with the ratification of conventions, international instruments in Malawi, are the international treaties which are contained in the Laws of Malawi) are as follows: 1. The Geneva Conventions Act, Cap. 12:03; and 2. The Treaties and Conventions Publication Act, Cap 16:02 4

21 The 1994 constitution of the republic of malawi For instance, Malawi labour laws do not provide for redundancy and/or retrenchment of workers. Secondly, they do not prescribe list of services that constitute essential services. However, Malawi ratified the International Labour Organization Convention No. 158 of 1982 in 1986 which is the termination of employment convention. The convention under its 14 th article provides for the issues of redundancy and retrenchment. Similarly, Malawi ratified the ILO s convention No. 87 of 1948 in 1999 which is the Freedom of Association and Protection of the Right to Organise convention. The convention provides for the list of services that are constituted as essential services. From the above outline of labour issues within the Constitution, we see the protection of individual s labour rights embedded in the supreme law of the land including all those rights that may not be contained in our labour Acts but in the ratified conventions. This means that no one can disregard such rights without breaking the law. 5

22 2 The Public Service Act No. 19 of Aim of the Act To make provisions for the administration of the public service Application of the Act Applies to all employees or officers serving for the Malawi government public service. It came into force on 1 st August, However, the Act exempts the following employees of the public service: 1. all employees in the Judicial service; Police service; Prison service, and Military service; 2. the Chief Justice, the Secretary to the Cabinet, the Attorney General, the Principal Secretaries and Director of Public Prosecutions; 3. all Personal Staff members (employees) of the President; 4. the Ambassadors, High Commissioners including other principal diplomatic staff members; 5. the Commander of the Defense forces, the Inspector General of police, and the Chief Commissioner of Prisons; 6. all senior Government officials of the Grade P4 and above as provided for under section 6 of the Public Service Act who are appointed by the President The Public Service Regulations Section 30 of the Public Service Act gives the Minister of Public Service powers to make regulations for the administration, 6

23 The public service act no. 19 Of 1994 regulation and disciplinary control of the public service. These regulations include terms and conditions of service of the public officers. The Minister using such powers, made the Malawi Public Service Regulations commonly known as the MPSR for the regulation of the public civil servants. Box 3: Composition of the Malawi Public Service The Public Service Although the phrase Public Service is key in the Public Service Act, the Act does not define it. However, its definition/description can be derived from the Republican Constitution. The Constitution established various institutions such as the Legislature, Electoral Commission, Executive, Judicature, Ombudsman, Human Rights Commission, Law Commission, Local government, Police, Defense forces, Prisons, Reserve bank of Malawi and Civil Service. All these are Public institutions and thus officers or employees serving in such institutions are Public servants thus constituting the public service. Furthermore, the Constitution under section 48 (1) vests all the legislative powers of the republic in Parliament. Thus the primary function of Parliament is to make laws that are written in various legislative Acts known as Acts of Parliament. An Act of Parliament can also provide for the establishment of some institutions that too become public institutions. For instance, the Anti-Corruption Bureau (ACB) was established by the corrupt practices Act. Similarly, all the statutory corporations were established by the Statutory Corporation Act. In this regard, the Public Service in Malawi is therefore described as an organization or body comprised of four parts as follows: 1. Civil service which is made up of all employees (civil servants) serving in various government ministries and departments; 2. Security organisations made up of all employees serving in the military, police, prison and intelligence services; 7

24 A Summary of Labour Legislation in Malawi - Kalani Malema 3. Local assemblies (councils) made up of all employees serving in the city, municipality, township and district councils; and, 4. Statutory bodies made up of all employees serving in various government controlled companies and institutions. Government controlled companies refer to statutory corporations such as ESCOM, EGENCO ADMARC, MHC, MANEB, Public Universities, Water Boards etc whereas Government controlled institutions mainly refer to specialist public institutions such as ACB, MERA, MACRA, Ombudsman, MHRC and many others. Note that all employees in the Local Councils as well as all junior officers serving in the National Assembly, except the exempted ones, are all covered by the public service Act. However their terms and conditions of service are not regulated by the Malawi Public Service Regulations (MPSR) as shown in the next section. Why is that so? The Public Service Regulations Section 30 of the Public Service Act gives the Minister of Public Service powers to make regulations for the administration, regulation and disciplinary control of the public service. These regulations include terms and conditions of service of the public officers. The Minister using such powers, made the Malawi Public Service Regulations commonly known as the MPSR for the regulation of the public civil servants. The administration of public servants who are exempted in the Public Service Act is being regulated by other regulations made as provided for in the Acts of Parliament providing the establishment of the institutions under which such public servants work. For instance, the Local Authorities Service Staff Regulations (LASSR) that regulates all the direct employees serving in the Local Councils were made as provided for under section 25 of the Local Government Act of

25 The public service act no. 19 Of 1994 Similarly, conducts of junior officers of the National Assembly are regulated by regulations made according to provision of the Parliamentary Service Act Note that Local Government Act and Parliamentary Service Act provide for the establishment of the Local Government Service Commission and the Parliamentary Service Commission respectively, the commissions that carry out their operations under the guidance of the Public Service Act (PSA, section 28). This means that local councils and national assembly junior officers are covered by the Public Service Act and as such their employment is supposed to be regulated by the MPSR. It appears in Malawi, we do not have an all inclusive Labour Legislation Act to provide for the administration of all public service officers including those not covered by the Public Service Act. If this is a significant gap, can it therefore be justifiable enough to call for the development or enactment of another public service related Act such as the Public Service Labour Relations Act as is the case in South Africa? It should however be noted that the Act guides and/or regulates the Civil Service Commission and every other Service Commission established under the Constitution in performing their functions (PSA, section 28). This means that the Act, indirectly applies to all officers serving in the public service including the so called exempted ones. This is because of the following observations: 1. Some of the exempted officers such as the police, prison, judicial and the military officers are administered by their respective Service Commissions that are all guided by the Public Service Act as provided for under section Most of the Presidential appointed officers have their appointments determined by the President but based on recommendations by their respective service commissions that are guided by the Public Service Act. 3. The Act provides for the Head of Public Service who is Secretary to the Cabinet (section 16) and hence the Minister responsible for Public Service is the President who can make regulations for the administration of the public services (section 30(1). 9

26 A Summary of Labour Legislation in Malawi - Kalani Malema In respect to the above discussion and observations, it is imperative that the key phrase public service under section 2 of the Act should have been defined to explicitly specify all its components / sub bodies of employees who are covered by the Act and not as otherwise implicitly stated in this section currently. Nevertheless, this book, under section of application of the Act, has shown all employees exempted by the Act having made reference to section 189 (1) of the Constitution Characteristics of the Public Service PSA, under Section 3, requires that all public officers should be of good character and discharge their duties according to the following seven principles: 1. Efficiency and effectiveness the public servant should aim at delivering services to the general public in an efficient and effective manners; 2. Confidence - the public servant should act as an instrument for generating and maintaining public confidence in the government; 3. Impartiality - the public servant must exercise their functions, powers and duties as impartial servants of the general public (section 193(1) of the Constitution; 4. Independence the public servant should ensure that his / her participation in political activities, if any, does not compromise his/her independent exercise of his/her functions; 5. Permanency the public service should be a going concern entity without being interrupted by the change of political leadership to ensure that government services are not disrupted following leadership changes; 6. Integrity the public servant should aim to achieve and maintain the highest degree of integrity and proper conduct amongst the personnel at all levels. 7. Public Interest Based Deliverance the public servant should aim at delivering services according to government policies and laws put in place according to wishes of the general public. 10

27 The public service act no. 19 Of Provisions for Fair Labour Practices The Public Service Act, like any other labour legislation Act, provides for fair labour practices which are highlighted as follows: Both, entry into the public service and advancement within the public service are determined solely on the basis of merit i.e. based on a person s relative ability, knowledge, skill and aptitude after fair and open competition that assures that all citizens receive equal opportunities. Selection of a candidate to fill a post in the public service by the authority shall be done primarily with due regard to the need for promoting efficiency. The filling of the post in the public service shall only be done if such a post is appropriately established or is vacant and is properly budgeted for in the government estimates of expenditure. All public officers shall be treated fairly and equally in all aspects of human resource management and development with no consideration to the officer s political, tribal, religious affiliation, sex, age and/ or origin in Malawi. Public officers remuneration shall be based on: 1. equal pay for work of equal value, and 2. recognition for excellence in the performance of their duties as determined by an objective method of evaluation. Disciplinary actions against any public officer shall be processed according to procedures laid down in the MPSR which in addition contains terms and conditions of service/employment in case of civil servants, and in other legally established regulations in case of other public officers. Public officers shall be deployed into work stations / locations based on the exigencies of the service while balancing three factors as follows: 1. the need to promote and to achieve higher individual output of the officer and to ensure his/her job satisfaction; 2. the need to achieve higher organizational performance of the public service; and 3. the attainment of national objectives. 11

28 A Summary of Labour Legislation in Malawi - Kalani Malema Public officer s retention at work at any time following his/her appointment shall be justified only on the basis of the need for his/her duties and his/her satisfactory performance of those duties. Public officers shall be accorded opportunities for career advancement and self-development through promotions and appropriate available training. Public officers shall be accorded facilities for staff welfare, job satisfaction, higher quality of working life, rewards and initiatives through the establishment and putting in place appropriate schemes and mechanisms. In general, the management of the public service shall be done to meet the following four basic requirements: 1. efficient and effective delivery of service to the public, 2. concern for the welfare of public officers as employees, 3. adherence to laws of the country, and 4. administration of staff regulations with sensitivity to social and economical impact of such administration on the individual public officer. Every employed public officer shall be responsible for the execution of the duties and tasks properly assigned to him/her and shall be accountable for his/her actions in the mobilization and utilization of resources made available in relation to the execution of duties and tasks. Every employed public officer shall have the right of access to the terms and conditions of his/her employment Retirement from the Public Service Section 29 provides for the retirement age in the public service. It states that no public officer shall continue to serve in the public service after attaining the mandatory prescribed retirement age. Section 29(2) further provides that the Minister responsible for the public service (the President) shall, from time to time by order published in the gazette, revise the mandatory retirement age. Note that retirement age for the Judges can be determined by Parliament from time to time (section 119 (6) of the Constitution). Currently the retirement age in the public service for specific officers is as shown in the table below. 12

29 The public service act no. 19 Of 1994 Public Officer Retirement Age Effective Date Civil servants Judicial Judges Magistrates/Other Judicial officers Other Public servants Administration and Management of the Public Service The President is the Minister responsible for the Public Service. The Secretary to the Cabinet shall be the head of the Public Service who shall be responsible for the overall management and administration of the Public Service. The head of the Public service, with approval from the Minister, shall be responsible for, among others, the staff welfare, motivation and remuneration of the public officers (section 17 (a) (iii)). The Act provided for the establishment of the Department of Human Resource Management and Development (DHRMD) to be headed by the Secretary, known as Secretary for Human Resource Management and Development. Secretary for Human Resource Management and Development shall be responsible to administer the Public Service Act and its involved issues on behalf of the Public service head, the Secretary to the Cabinet Restriction on Termination of the Service of Public Officers A Public officer holding an established post on permanent and pensionable terms can only be dismissed or terminated if one of the following circumstances arises: 1. abscondmentfrom work as defined in the MPSR; 2. on abolition of the post held by the officer; 3. once proved to have committed a prescribed act of misconduct; 4. on failure to defend himself or herself after being subjected to a fair disciplinary hearing process guided by all the critical rules of natural justice i.e. officer must be heard by the right and non biased individual. 5. The officer with a disciplinary charge presented before him/ 13

30 A Summary of Labour Legislation in Malawi - Kalani Malema her can be terminated by way of retirement provided the officer meets either of the existing conditions of retirement in the public service whether the officer likes or not. However, this is only possible if the charge does not involve the misappropriation of public funds or stores under his/her control. The officer should be presented with a written notice of the disciplinary charge stating the misconduct act committed and thus be allowed a reasonable time period of not less than 21days from the disciplinary charge notice date. Box 4: International Labour Organisation Conventions Relevant to LRA International Labour Organizations (ILO) Conventions ILO Convention No. 87 of 1948: Freedom of Association and Protection of the Right to Organise. The International Labour Organisation adopted the Freedom of Association and Protection of the Right to Organise Convention on 9 th July This is a convention that provides for the employment parties to exercise their right of freedom of association and that of protection of the right to organize. It came into force on 4 th July 1950 and Malawi ratified this Convention in ILO Convention No. 98 of 1949: Right to Organise and Collective Bargaining. The International Labour Organisation adopted the Right to Organise and Collective Bargaining Convention on 1st July This is a convention that provides for the employment parties to exercise their right to organize through formation of trade unions and employers organizations as well as their right to collectively bargain with each other in good faith. It came into force on 18 th July 1951 and Malawi ratified this Convention in ILO Convention No. 144 of 1976: Tripartite Consultation (International Labour Standards). 14

31 The public service act no. 19 Of 1994 The International Labour Organisation adopted the Tripartite Consultation (International Labour Standards) Convention on 21 st June This is a convention that provides for the tripartite consultation structures through various formed structural committees that are composed of selected employees or trade union members, employers or employers organizations and the government labour department officials. It came into force on 16 th May 1978 and Malawi ratified this Convention in The effect for Malawi s ratification of these three ILO conventions is that provisions contained in these conventions are part and parcel of Malawian labour laws. In this regard, Malawi domesticated some of these conventions provisions in the Labour Relations Act (LRA), of 1996 which is a law to promote sound labour relations through the protection and promotion of freedom of association, the encouragement of effective collective bargaining and the promotion of orderly and expeditious dispute settlement, conducive to social justice and economic development. 15

32 3 Labour Relations Act No. 16 of 1996 (Cap. 54:01) This Act repealed and replaced the Trade Disputes (Arbitration and Settlement) Act, Cap 54:02 of 1952 and the Trade Unions Act, Cap 54:01 of Aims of the Act Promotes sound labour relations through the protection and promotion of freedom of association. Promotes orderly and expeditious dispute settlement, conducive to social justice and economic development. Encourages effective collective bargaining Application of the Act applies both to the private and the public (government) sectors; and public sector includes all public authorities or enterprises owned or controlled by Government Freedom of Association The Act provides that every person has a right to freely associate, which includes freedom to establish and freedom to join organizations of one s choice Rights of Trade Unions and Employers Organizations Right to draw up their constitutions and rules; Right to elect its officers and representatives; 16

33 Labour relations act no 16 of 1996 (cap. 54:01) Right to organize its administration and activities; Right to formulate their programmes; Right to participate in the union; and Right to affiliate to international workers organizations etc Protection of Employees Right to join and become members of unions; Right not to be dismissed from employment etc because of membership to a union or based on the fact that one has exercised right conferred by the Act; Right to have no threats when exercising rights under this Act; Right not to be promised benefits for not exercising rights provided for under this Act; and Right not to be dismissed because of striking. The employer has a burden to prove the non-breach if s/he acts contrary to the provided rights under this Act Protection of Organisations Every person has right to membership as long as in compliance with rules of organization. Discrimination in membership is prohibited. Affirmative programmes for the disadvantaged are allowed. The remedy for the grieved individuals is mainly through Industrial Relations Court (IRC), which has power to reinstate, restore or order payment for compensation Trade Unions and Employers Organisations Registrar and Registration The Registrar or Assistant Registrar of Trade Unions and Employers Organizations is a public servant appointed by the Minister of Labour usually from within the Ministry s labour officials. The Registrar will be responsible to keep and maintain a register of trade unions and employers organizations. At least 7 members of an unregistered trade union and/or at least 2 members of an unregistered employers organization can apply to the Registrar for registration of their organizations. 17

34 A Summary of Labour Legislation in Malawi - Kalani Malema The Registrar will issue a certificate of registration to the applicant of the registered organization which shall be evidence that the trade union or employers organization is a registered organization. Every registered organization will be a body corporate with capacity to contract, to hold property, to sue and to be sued. Every registered organization will be required, in line with accounting practice, principles and procedures, to: 1. keep books and records of accounts of its income, expenditure, assets and liabilities, 2. prepare annual financial statements consisting of an income and expenditure statement for the financial year, 3. have its books and records of accounts and financial statements audited annually by an organization appointed auditor. Every registered organization shall be required, within 6 months after the end of its financial year, to submit its annual return to the Registrar. The annual return should contain: 1. the audited financial statements, 2. a list of names and postal addresses of its officers, and 3. the number of members of the organization. Every registered organization shall keep for at least 3 years: 1. a list of its members, 2. minutes of its meetings, and 3. used ballot papers. No person convicted of any crime involving fraud or dishonesty shall, within 5 years of date of such conviction, be an officer of an organization. The registration and the certificate of registration of an organization can be cancelled by: 1. an order of the Registrar, 2. an order of the Industrial Relations Court, and 3. by request of the organization. Any member of a registered organization or the organization itself aggrieved by the registrar s decision can, within 60 days of the decision date, appeal against such decision to the Industrial Relations Court. 18

35 Labour relations act no 16 of 1996 (cap. 54:01) Rules of Registered Trade Unions and Employers Organisations Every registered organization will be regulated by the following general rules: 1. the name of the organization; 2. the principal objectives of the organization; 3. the registered office to which all communications and notices should be addressed; 4. the qualifications for membership; 5. the grounds on which a member can be suspended or expelled from being a member; 6. the fines and forfeitures that can be imposed on a member; 7. the procedures to be followed when it is proposed to impose any fine or forfeiture or suspension or expulsion of a member including procedures for the concerned member to be heard as required by laws (rules of natural justice); 8. the membership fees and other subscriptions payable and the maximum period of arrears permitted before a member loses a standing; 9. the conditions under which a member may be entitled to the financial benefits; 10. periodic elections to all offices and for the appointment of a temporary replacement; 11. the nomination of candidates for election as officers; 12. positions of officers reserved for women at least in proportion to the female membership of the organization or 20 % of the positions for females; 13. the holding of a secret ballot paper for the election of officers whenever more or one candidate has been nominated for any office; 14. the powers, functions and duties of offices; 15. the convening and conduct of meetings of members or representatives of members by a quorum if required at such meetings, the vote required for different decisions, and the keeping of minutes of the meetings; 16. a general meeting open to all members or their representatives to be held at least once every 2 years; 17. the manner of altering the rules; 19

36 A Summary of Labour Legislation in Malawi - Kalani Malema 18. the custody and investment of the organisation s funds, the designation of the officer responsible for its accounts; 19. the inspection of the register of members and other books of the organization by any member in good standing; and 20. the manner of dissolving the organization and the disposal of the funds available at the time of the dissolution. Alteration of rules is allowed by the registered organization through a resolution passed by the majority voters. The Registrar registers the altered rules and issues an alteration certificate which maintains the effective date to the same organisation s original entry date in the register Amalgamation of Organisations Amalgamation (joining together of two or more organizations) is allowed by a majority resolution. After amalgamation, all assets, rights, obligations and liabilities of the amalgamating organizations will devolve to be for the amalgamated organization Collective Bargaining and Organisational Rights Enterprise Level Bargaining Enterprise level bargaining refers to single workplace bargaining. The employer must recognize a trade union for the purpose of enterprise level bargaining where: 1. At least 20 % of the employer s employees with a common interest to bargain with their employer are members of the trade union. Senior managerial staff members are not considered to be employees for this enterprise level bargaining unless condition 2 below is fulfilled. 2. At least 20 % of senior managerial staff members are also members of a particular trade union. A dispute with respect to the right of a trade union to be recognized for the purpose of collective bargaining may be referred by either party to: 1. the Industrial Relations Court where the employer is the government or any of its companies and institutions; 20

37 Labour relations act no 16 of 1996 (cap. 54:01) 2. the Principal Secretary for Labour where the employer is not the government or its companies or institutions. With recognized trade unions for the purpose of collective bargaining, either party to the bargaining may give notice of collective bargaining that should take place within 60 days from the date the other party receives the notice unless the parties agree otherwise Sectoral Level Bargaining Sectoral level bargaining refers to more than one workplace bargaining. A trade union or grouped trade unions representing at least 15 % of the sectoral employees can request the authorized employers organizations representing the sectoral employers to enter into a collective bargaining. An employers organization or grouped employers organizations representing the sectoral employers who employ at least a total of 15 % of the sectoral employees can request the authorized trade unions representing the sectoral employees to enter into a collective bargaining. Either party (i.e. a trade union or employers organization) can apply in a prescribed form to the Minister for Labour requesting for the establishment of an industrial council on condition: 1. that a requested party to a collective bargaining failed to reply within 60 days from the date of receiving the request, or 2. that the request has been refused. The Minister will have to notify the concerned parties about his / her decision within 21 days from the date of receiving the industrial council establishment request. The Minister s decision to establish an industrial council must be gazetted and published in at least one newspaper in general circulation in Malawi. The publication content should include: 1. description of the sector, 2. the relevant parties, and, 3. an invitation to the other trade unions and employers organizations in the sector to participate in the council. 21

38 A Summary of Labour Legislation in Malawi - Kalani Malema Composition of the Industrial Council The industrial council shall consist of: 1. Sectoral applicant for the industrial council i.e. the trade union or the employers organization. 2. Sectoral respondent to the application i.e. the trade union or the employers organization. 3. Any authorized organizations representing sectoral employees or employers. Functions of the Industrial Councils will include three primary functions as follows: 1. negotiating wages and conditions of employment, 2. agreeing on the establishment of the dispute resolution machinery, and 3. developing an industrial policy for the concerned industry. Parties to the industrial council shall be meeting once a year unless the parties agree to meet more than once. It is required for every member or party to the industrial council to negotiate / bargain in good faith and to make reasonable effort to conclude their collective agreement. Note that bargaining in good faith entails that each member should genuinely strive to reach an agreement; should attend all the meetings; should observe punctuality; should give full mandate to representatives; should motivate the opposition s proposals; should maintain a consistent delegation to ensure effective continuity of the negotiations; and be able to disclose the required information for the purpose of collective bargaining Collective Agreements Parties will draw up an agreement to regulate the procedures of council at the first meeting of the industrial council. The drawn agreement will provide for: 1. the appointment of representatives of the parties to the industrial council of which 50 % of the appointed representatives shall come from each party, 2. the manner or modalities in which decisions are to be made, and 3. the admission of additional trade unions and employers organizations as parties to the industrial council. 22

39 Labour relations act no 16 of 1996 (cap. 54:01) Terms of Collective agreements shall: 1. be in writing and signed by the parties to the agreement, 2. contain the effective date, 3. contain procedures for the avoidance and settlement of disputes arising out of the interpretation, application and administration of the agreement that may include a reference to conciliation or arbitration, 4. contain provisions that are not in conflict with the standards or regulations provided for by the country s labour laws. The collective agreement document becomes binding to the parties who have signed for it. The terms of the collective agreement shall be deemed to be incorporated into the employment contract of each employee who is covered by the collective agreement. The parties to the collective agreement shall deposit a signed copy of their collective agreement with the registrar in the Ministry of labour. Box 5: Content Provisions of the Collective Bargaining Agreement (CBA) Model Provisions of the Model recognition and procedural agreement between an employing Authority and the trade union There are agreed draft provisions to guide the development of specific CBAs between employers and their employees affiliated trade unions. The provisions were drafted by the Ministry of Labour in consultation with the country relevant employment social partners. Although the provisions are yet to be adopted, they are still recommended to be used by employers and employees organizations as reference guidelines. There are grouped into 17 sections as follows: General Principles: The parties recognize that sound and fair industrial relations are essential for the viability of the company and the economic and social welfare of the employees and thus commit themselves to the achievement of the common objectives of fairness in employment, in the maintenance of acceptable work and behavior standards and industrial peace. 23

40 A Summary of Labour Legislation in Malawi - Kalani Malema The Company recognize the role of the Union as the representative of employees who are members of the Union and as the body duly elected by the employees to act on behalf of the members in their relations with the Company and to represent them in their dealings with the Company in accordance with the terms of this agreement and the Constitution of the Union. On the other hand, the Union recognizes the right of the Company to manage direct and control the affairs of the company. Recognition: The Company recognizes the Union as the sole collective bargaining representative of its employees who are members of the Union (the bargaining unit), to negotiate with the Company collective agreements on wages and conditions of employment and matters of mutual interest provided that the Union shall have and shall maintain a membership of not less than 20 % of the employees within the bargaining unit as prescribed by the Labour Relations Act, Cap 54:01 (a lower threshold could be agreed by the parties). Membership of the Union, in so far as it may be relevant for the purposes of this Agreement, shall be determined solely on the basis of signed membership cards in favour of the Union signed by individual employees. Nothing contained in this Agreement shall preclude the Company from dealing with a minority trade union in respect of any matter affecting its members. Union subscriptions: The Company agrees to deduct the Union subscription fees from the wages of Union members on production by members of authority to do so in accordance with [next clause]. Union members shall individually or through the Union, authorize the Company in writing to make deductions. Such deductions shall take place within two weeks following the receipt of such authorization. The individual deductions shall be made once every month and remitted to the Union within fourteen calendar days thereof together with a list of the names of all Union members in respect of whom deductions have been made. A copy of the list shall be furnished to a member of this shop stewards committee. 24

41 Labour relations act no 16 of 1996 (cap. 54:01) The Company shall cease to deduct subscriptions upon receiving one month s written notice by an employee to the Company instructing the Company to cancel the stop order. The Company shall advise the Union of such cancellation and remit to the Union copies of all such written notices of cancellation. The amounts to be deducted for Union dues, as provided for in the Union s Constitution shall be limited to membership fees, levies and any other deductions which are expressly authorized in writing and are in accordance with the laws. In the event that there is a change in the Union membership fees (in accordance with the Union s Constitution), the Union shall give one calendar month s written notice to the Company and all its members and the Company shall raise the deduction in the first week following the expiry of the notice period. The Company may raise as an administration fee of amount not exceeding 2 % of the total amount deducted in terms of this clause. Access: The Company shall grant Union officials access to its premises for the purposes of conducting Union Business provided that prior arrangement has been made with the Company Manager. All access shall be subject to compliance with the Company s normal security and safety requirements applicable to all visitors to its premises and the timing shall be such as to avoid undue disruption of operations of the business of the Company. The Shop Stewards Committee shall be entitled to display notices and/ or announcements concerning Union activities on a designated company notice board. Shop Stewards: The Union undertakes to give the Company notice in writing of any pending elections prior to calling for nominations. Nominations and elections of shop stewards shall take place on the Company s premises during working hours. The time for the elections shall be agreed with the Company. The Union shall, within seven days of any election having taken place, notify the Company in writing of the names of the shop stewards so elected and the constituencies they represent. 25

42 A Summary of Labour Legislation in Malawi - Kalani Malema Rights and obligations of shop stewards: A shop steward undertakes to honour the Union s obligation in terms of this Agreement. A shop steward shall have reasonable access to other shop stewards and members for the purpose of: investigating grievances of employees within their constituency consulting with management on matters affecting the interests of employees within the bargaining unit holding report-back meetings with employees representing employees in any disciplinary proceedings instituted by the Company subject to the provisions of this Agreement and provided that the shop steward concerned has duly informed his or her superior. The shop steward shall report to his or her superior immediately upon returning to the work station. The Company s rules, regulations and conditions of employment including its Disciplinary and Grievance Procedures shall apply to all shop stewards the same way they apply to the other employees. Shop stewards training and trade union affairs: The company recognizes the value of training to enhance the skills of all its employees. In addition to any training which the Company may provide for its employees, the Company agrees that: Shop stewards may be granted not more than X days paid leave and five days unpaid leave per year to attend industrial relations training courses conducted by the Union or other trade union business, provided that both the date and duration of such training course or union business are arranged with the Company at least fourteen days in advance and provided that no more than Y shop stewards will be absent at one time, unless mutually agreed otherwise. No leave in terms of this clause will be granted between specified M 1 and M 2 dates in any year except at the discretion of the Company. Further unpaid leave may be granted at the discretion of the Company to shop stewards to attend Union meetings. A request for such unpaid leave shall be made at least fourteen days in advance. 26

43 Labour relations act no 16 of 1996 (cap. 54:01) Meetings General Meeting: The Union shall be entitled to hold general meetings of employees in the bargaining unit on Company premises provided that: written notice from the Union officials stating the time, date, agenda and suggested venue of the meeting is received by the Company Manager at least five working days in advance. The Company shall advise the Union of the venue of the meeting at least two working days before the scheduled date. Other meetings shall be held in accordance with the Union s Constitution outside of normal working hours. The use of Company premises by the Union for meetings with its members shall be subject to the Union accepting full responsibility to ensure that the meetings are orderly, that no damage to property or injury to persons takes place and the Union accepts responsibility for ensuring that the venue is left in the same condition of cleanliness as it was prior to the meeting. Monthly meetings between Management and the Union: Management and the Shop Stewards Committee shall meet monthly on a scheduled date on the Company premises during working hours unless agreed otherwise by the parties. The parties shall separately propose agenda items for the meeting and submit to the Company Manager who shall thereafter arrange a meeting to come up with a consolidated agenda. The Company Manager shall prepare and distribute the agreed agenda to all those expected to attend the meeting at least twenty-four hours before the scheduled meeting. Minutes of the meeting shall be recorded by the nominated minute taker. Minutes shall reflect the outcome of any matter discussed and shall not reflect the discussion which took place or the viewpoints expressed. By agreement between the parties the Minutes shall thereafter be placed on the Notice Board and shall, in any event, be kept by the Chairperson of the Shop Stewards Committee. The shop stewards shall be entitled to report back to their constituencies during their own time or, by agreement with line management, during working time if special circumstances exist. 27

44 A Summary of Labour Legislation in Malawi - Kalani Malema Special meetings between Union and Management: Special meetings between the company and the shop stewards may be called by either party to discuss matters of urgency upon twenty-four hours notice. Such notice shall furnish details of the matter to be discussed. By agreement, the notice period may be waived. Negotiations: The parties agree that negotiation will be the principal method to effect any change to conditions of employment and/or any other issues contained in this and other Agreements concluded between the parties. The parties expressly agree to negotiate whether annually, every two years, etc on changes in members wages and other substantive conditions of employment which negotiations shall commence in P month. The negotiating committee shall comprise not more than Y Union representatives of whom Y 1 shall be shop stewards and Y 2 company representatives. The function of the negotiating committee shall be to negotiate and endeavour to reach an agreement on: wages, working conditions terms and conditions of employment amendments to this or any other procedural Agreement, and other matters of mutual interest and concern. A party wishing to initiate negotiations shall furnish written proposals to the other party together with a proposed agenda not less than fifteen working days in advance, unless the notice period is waived by mutual consent. The parties shall use their best endeavours to negotiate in good faith and reach agreement and may meet as often as they agree if necessary. Any agreement reached between the parties shall be reduced to writing and signed by the parties. Such Agreement shall be enforceable as provided for under the Labour Relations Act, Cap 54:01. In the event that the parties fail to reach agreement after at least three meetings, either party shall be entitled to use the Disputes Procedure set out as below unless both parties agree that a deadlock has not been reached. 28

45 Labour relations act no 16 of 1996 (cap. 54:01) Disputes procedure: For the purpose of this Agreement, a dispute is any serious disagreement between the parties relating to the collective relationship of the parties or the employment relationship between the company and its employees arising out of: negotiations conducted in terms of this Agreement, or a grievance, or any disciplinary action, or health and safety issues, or alleged unfair labour practices, or a strike or lockout. Either party may declare a dispute by giving the other party written notice, stating the nature and details of the dispute and the proposed settlement thereof. Within three working days of receipt of a notice of a dispute, the negotiating committee shall meet to resolve the dispute. The parties may, at any stage, agree to refer the dispute to private conciliation. If the parties so agree but are unable after two meetings to agree on a conciliator, the dispute shall be referred to the Secretary for Labour in accordance with the Labour Relations Act, Cap 54:01. The costs of private conciliation shall be borne on the basis of 2/3 employer and 1/3union formula. If a rights dispute has not been resolved after compliance with the Dispute Procedure set out in the CBA and the parties have failed to agree on further third party intervention within five working days of the expiry of the time period referred to in this CBA or such longer period as may be agreed by the parties, the dispute shall be submitted for determination to the Industrial Relations Court in accordance with the procedures set out under the Labour Relations Act, Cap 54:01. For the purposes of this Agreement, a rights dispute means a dispute relating to the interpretation or application of existing rights in the collective relationship between the parties or in the employment relationship and which would be justifiable in a court of law. Neither the Company, nor the Union, nor its members shall take part in or support any industrial action in connection with a rights dispute. 29

46 A Summary of Labour Legislation in Malawi - Kalani Malema On the other hand, if an interest dispute is not resolved after compliance with relevant provisions of this CBA, the parties shall, in accordance with the provisions of the Labour Relations Act, Cap 54:01 refer the dispute to conciliation under the auspices of the Secretary for Labour. For the purposes of this Agreement an interest dispute means a dispute relating to the collective relationship between the Company and the Union or the employment relationship between the Company and its employees, in respect of which neither party has a clear legal right to its claim and also in respect of which the claimant seeks to create a right by agreement with the other party. In the event of the dispute not being resolved by conciliation under the Labour Relations Act, Cap 54:01, the parties may invoke such legitimate and lawful action as may be appropriate in the circumstances in accordance with the procedures laid down under the Labour Relations Act, Cap 54:01. Divulging Information to a Third party: Any information disclosed for the purpose of negotiation or collective bargaining that is not meant for public consumption shall be treated as confidential by the party receiving that information and shall not be disclosed to a third party without the prior consent of the party providing the information. While negotiations are under way, no party shall unilaterally communicate to a third party, including to the press, the status of the negotiations. Where the parties agree to provide information to the public separately in the course of negotiations, they shall agree on the content of such information. Industrial Action: The Company and the Union agree not to resort to or to support any industrial action until the dispute procedures contained in this Agreement and the Labour Relations Act, Cap 54:01 have been exhausted. The Union undertakes that its officials and members shall not take part in or support any work stoppage, go-slow, strike or other form of industrial action in breach of the provisions of this agreement. Should industrial action nevertheless occur in breach of the provisions of this Agreement, the Union and its shop stewards undertake to take immediate action to ensure that normal working conditions are restored. The Company undertakes not to dismiss any employee as a result of his or her having participated in any industrial action provided that: Such action is carried out in accordance with this Agreement and the Labour Relations Act, Cap 54:01; and the 30

47 Labour relations act no 16 of 1996 (cap. 54:01) employees participating in the industrial action do not in any way perform any act of violence, intimidation, destruction or damage directed at or against the Company, its employees, customers, suppliers or agents or any vehicles, equipment or any other property owned or controlled by them or prevent any employee, customer, supplier or agent of the Company or any vehicle driven by any employee, customer, supplier or agent of the Company from entering or leaving any premises owned or controlled by the Company. Union Constitution: The Union shall provide the Company with a copy of its Constitution within seven days of the parties signing this Agreement. The Union shall provide the Company with a copy of any amendments to its Constitution within one month of such amendments being registered, approved and certified in accordance with the Labour Relations Act, Cap 54:01. Communication: Nothing contained in this Agreement shall preclude the Company from communicating in any form directly with its employees provided that no communication shall take place which undermines the Union, its shop stewards and officials or which is calculated to subvert the process of collective bargaining. Period of agreement: This Agreement shall come into effect on the date of execution and shall expire within R years (not more than 4 years) from that date. Provided that it may be terminated earlier if circumstances so require. Such circumstances include the following: 1. When the Union or enterprise ceases to exist 2. When a material breach of the Agreement occurs and the party in breach has failed to remedy that breach (parties to define what constitutes material breach ) 3. When this Agreement is superseded by a further Agreement concluded by the parties 4. Where the union membership has fallen below the threshold for the enjoyment of collective bargaining rights as stipulated in the Labour Relations Act, Cap 54:01 or below such lower threshold as may be agreed by the parties. 31

48 A Summary of Labour Legislation in Malawi - Kalani Malema In the case of bullet 4 above, the Company shall give written notice to the Union of the fact that its representation has fallen below the minimum of 20 % of the employees in the bargaining unit and if the Union fails to substantiate its membership within one calendar month or such further period as may be agreed to, the Company shall be entitled summarily to terminate this Agreement by written notice at the expiry of that calendar month. Amendment of the Agreement: A part may propose an amendment to this agreement at any time. A meeting to discuss the proposed amendment will be arranged by the Company Manager within one calendar month of receipt of the proposal by the other party. No amendment to this Agreement or to the annexure shall be of any force unless reduced to writing and signed by the parties. Addresses and Notices: Unless otherwise stated in this Agreement, any notification required in terms of this Agreement or any other Agreement between the parties shall be in writing and directed to the following addresses: the Company official address and the trade Union official address. Payment of any subscription or trade union money shall be sent to the Union s office Access to Employers Premises An officer or a representative of a trade union is allowed reasonable access to the employer s premises for the lawful activities of the trade union. An employer is allowed to impose access conditions that allow for the safety and avoidance of some undue disruptions. Proof of identity and credentials can be required by the employer in respect to granting the access Trade Union Subscriptions An employee who is a member of a trade union may submit directly to his /her employer or through his / her trade union, a written authorization for the periodic deduction from the employee s wages as subscriptions payable to that trade union. An employee may cancel such authorization by giving 1 month written notice to the employer and to the trade union. 32

49 Labour relations act no 16 of 1996 (cap. 54:01) An employer is required to remit the authorized wage deductions to the trade union. The employer and a trade union are free to agree on a reasonable fee for the services of deducting trade union subscriptions Leave for Trade Union Activities An employer must give time off or leave of absence to a trade union officer as may be appropriate for the purposes of carrying out trade union activities. Leave of absence means permission by the employer for his/her employee to go on leave without or with salary payment interruptions based on reason for such a leave. In this case, leave of absence is to let the official fulfill union duties, training or secondment purposes relating to trade union activities Disclosure of Information An employer is required to disclose all relevant information to trade union officials which is necessary for their effective collective bargaining. However either party will not be required to disclose to each other: 1. any legally privileged information, 2. any information that invades the employee s privacy, and 3. any information in respect to trade or commercial secrets Industrial Dispute Settlement Definition of the term dispute. Dispute is defined as a difference between an employer or employers organization and employees or a trade union regarding: 4. the employment or non-employment; 5. the terms of employment; 6. the conditions of labour or conditions of the work done or to be done; and 7. the social or economic interests of employees. Reporting of disputes. A dispute may be reported to the Principal Secretary for Labour by either party to a dispute or by any one on behalf of the party to a dispute. The reporting party should send a copy of the report to the other party to the dispute and the Principal Secretary should acknowledge receipt of any dispute report by writ- 33

50 A Summary of Labour Legislation in Malawi - Kalani Malema ing within 7 days from date of dispute report. Conciliation procedure. The Secretary or Representative will attempt to conciliate a dispute having checked and found that the parties established procedures in a collective agreement have been first exhausted unless parties themselves agree to ignore them. The disputants shall agree on the person to conciliate them and not the Secretary in cases where one of the disputant is the government. Either party can refer their dispute to Industrial Relations Court to appoint their conciliator once the parties themselves disagree to choose their own within 7 days from dispute report date. The conciliation process must be finished within a period of 21 days from the dispute receipt date unless the parties agree to extend their conciliation period. The dispute shall be declared unresolved dispute if parties fail to agree on a resolution within the required conciliation period. In case the dispute is settled, the settlement must be written and signed by both parties and the Conciliator for it to be binding with effect from the signing date. The unresolved dispute. The Principal Secretary or either party to the unresolved dispute may refer the dispute to IRC for determination or either of the parties may give 7 day notice of intention to strike or lockout. Strike or lockout procedures. A strike means concerted (group organized) action resulting in a cessation of work or refusal to work by employees. Or strike is a slowdown or concerted activity of employees designed or planned to limit the production services provided it is not a refusal required for employees safety at work. Whereas lockout means closing a place of employment or suspension of work by an employer or a refusal by the employer to continue to employ / use any number of his/her employees with a reason to compel employees to agree to certain terms or conditions of employment. A strike or lockout must only follow the unresolved dispute that arises once all the dispute conciliation procedures have been complied with. A party to a dispute intending to strike or lockout must give a written notice to the other party and to the Principal Secretary at least 7 days before the strike or lockout action. Strike or lockout in essential services is not allowed. The Minister for Labour can apply to the Industrial Relations Court to determine 34

51 Labour relations act no 16 of 1996 (cap. 54:01) whether a threatened or actual strike or lockout involves essential services or not. Labour Relations Act does not define explicitly a list of services that constitute essential services. However, the Freedom of Association and Protection of the Rights to Organise Convention, that Malawi ratified, defines a list of essential and non essential services. The essential services include the following: 1. services of the hospital sector; 2. electricity services; 3. water supply services; 4. the telephone services; and 5. air traffic services and many others as may be decided by the competent courts. Whereas the non essential services include the following: 1. radio and television services; 2. loading and unloading services of the petroleum sector; 3. banking services; 4. computer services for the collection of excise duties and taxes; 5. services of the department stores and pleasure parks; 6. services of the metal and mining sectors; 7. general transport services; 8. refrigeration enterprise services; 9. hotel services; 10. construction services; 11. automobile manufacturing services; 12. postal services; 13. metropolitan transport services; 14. services of the education sector; 15. the mint services. Mint is a place where money is made; 16. government printing services; aircraft repair services; 17. agricultural activities; 18. services of the supply and distribution of food stuffs and many others as may be decided by the competent courts. A Strike or Lockout that has taken place following all the procedures laid down in this labour relations Act shall be described as a legal action and hence will not: 1. have breached the provisions of a collective agreement between 35

52 A Summary of Labour Legislation in Malawi - Kalani Malema the parties if they have such signed agreements; 2. have breached the contract of employment of each employee or employer involved in a strike or lockout; 3. justify any civil proceedings against the employee, employer, or their organizations including officers of such organizations unless the person s action in the process of such strike or lockout action commits a criminal offence (this is civil immunity for employees or employers involved in a strike or lockout); 4. block the person s right to be reinstated or go back for work after such industrial action unless such person s employment position has been abolished as a result of material changes to the employer s operations; 5. will not exempt the employer from ensuring that any termination of employment satisfies the requirements of the Employment Act. 6. An employee has the right to refuse to do any work normally done by an employee or employees who are on strike or lockout except in the case of essential services. An employer is not allowed to employ another person to do the work of an employee participating in a strike or the locked out employee unless such work is necessary to maintain the minimum maintenance services. The minimum maintenance services are those services whose interruption would result in material damage to a working area or machinery. Peaceful Picketing. This involves a an employee on a legal strike to be at a place of work or place of business of the employer for the purpose of peacefully communicating information or persuading any one from: 1. entering that place of work or business, 2. attempting to work, 3. dealing in or handling the employers products, and 4. doing any business with the employer. Peaceful picketing is a right for every employee pursuing a legal strike. This right extends to any officer of a trade union or of an employers organization whose members are acting in respect of the strike or lockout in question. Injunction in respect of Strike or Lockout. A party to a dispute that 36

53 Labour relations act no 16 of 1996 (cap. 54:01) feels that the other party has violated the laid down procedures regarding strikes and lockouts may request the Industrial Relations Court to issue an injunction. The Industrial Relations Court shall grant injunction provided that: 1. such application has been served to the other party; 2. the service of the injunction has been done within 48 hours before the hearing unless it is in an essential services; and 3. the other party has been given chance to be heard Tripartite Labour Advisory Council The Minister responsible for Labour appoints the Tripartite Labour Advisory Council (TLAC). The Council consists of 12 members appointed for a 3 year term, that may be renewable, from each of the three social partners as follows: 1. 4 persons appointed by the Minister from government side with at least one being female, 2. 4 persons nominated by the most representative trade unions and appointed by the Minister with at least one being female, and, 3. 4 persons nominated by the most representative employers organizations and appointed by the Minister with at least one being female. One member from the government side is appointed to serve as the chairperson of the Council. The Ministry of labour official is appointed to serve as Secretary for the Council. The Council will play an advisory role to the Minister. The advisory role shall be in two main categories as follows: 1. Advising on all issues relating to labour and employment that include the promotion of: collective bargaining, labour market, human resources development, and, the review of the operations and enforcement of the Act. 2. Advising on matters concerning the activities of the international labour organization that include the following specific activities: Government replies to questionnaires concerning items on 37

54 A Summary of Labour Legislation in Malawi - Kalani Malema the agenda of the International Labour Conference and Government comments on proposed texts to be discussed by the conference, proposals to be made to the competent authorities in connection with the submission of Conventions and Recommendations as provided for under article 19 of the ILO Constitution, periodic re-examination of the non ratified Conventions and Recommendations that Malawi has not yet adopted and considering all measures that might be taken to promote their implementation or ratification, considering questions arising out of reports to be made to the International Labour Office as required by article 22 of the ILO Constitution, and, proposals for the denunciation of the ratified Conventions. The Council meets at least once a year on the Minister s direction or on request by at least 5 of the Council s appointed members. Three Council members shall constitute a quorum as long as each of them comes from each of the three social partners i.e. Government, employees and employers. The council draws its own procedural rules and can operate through its own established standing or adhoc committees. A non council member on advisory capacity can be invited to sit on such a committee The Industrial Relations Court The Industrial Relations Court (IRC) was established with original jurisdiction to hear and determine all labour disputes. Any party who is not satisfied with IRC decision is allowed to appeal to High Court. The Industrial Relations Court consists of 12 people appointed for a 3 year term, that is renewable, from three groups as follows: 1. The Chairperson and Deputy Chairperson appointed by Chief Justice on the recommendation of the Judicial Service Commission from the government side persons nominated by the most representative organization of employees (the employees panel) and appointed by the Minister with at least one being female, and 38

55 Labour relations act no 16 of 1996 (cap. 54:01) 3. 5 persons nominated by the most representative organization of employers (the employers panel) and appointed by the Minister with at least one being female. Three people shall constitute a quorum of whom one must be the Chairperson or the Deputy Chairperson and the other two chosen by the Chairperson should be from the employees panel (1) and the employers panel (1). The decision of the majority of the members becomes the decision of the IRC. The IRC sitting may be constituted by the Chairperson or Deputy Chairperson alone whenever the dispute at hand involves only a question of law. The IRC will have its own Registrar appointed by the Chief Justice and other staff members who will be appointed in accordance with the Public Service Act. Chief Justice with advice of the Chairperson of the Industrial Relations Court makes rules to regulate the court procedures. The rules will take into account, the informality, economy and dispatch in the court s proceedings. Rules of evidence used in civil proceedings are not applied in the IRC proceedings. The IRC does not make orders in relation to costs. However, the court may make an order of costs where a party fails to attend any court s conciliation meeting without good reason or when the matter under consideration is frivolous or vexatious (annoying). A party to any Industrial Relations Court proceedings may: 1. appear personally, 2. be represented by any member of the organization to which the party is also a member or by a trade union / employers organization official or by his/her co-employee or by labour officer or by any other person appointed by the party himself or herself, be represented by a legal practitioner (lawyer) with the court s arrangement in cases where the other party is being represented by the legal practitioner. The Industrial relations court may proceed with certain case proceedings even when one party fails to attend or to be represented without any good reason. Any decision or order of the IRC has the same force and effect like 39

56 A Summary of Labour Legislation in Malawi - Kalani Malema any other decision or order of any competent court and thus will be enforceable accordingly. Box 6: The Process and Procedures of Staging Strikes/Lockouts in Malawi Legal Strike or Lockout Process and Procedures in Malawi Nearly every employee in Malawi knows that a strike is an action that can be undertaken by employed workers in order to compel their employer to address their problem. Strike in Malawi, like in any other world country that is also a member state of International Labour Organisation (ILO), is a workers right that has to be respected by employers and their associations. Indeed, as put in the ILO s Freedom of Association Convention, the right to strike is a fundamental right of workers and their organizations or trade unions. It is surprising to many Malawians, however, that strikes that take place in Malawi are often declared illegal by labour officers and courts leaving the striking employees at the mercy of their offended employers. Rumours have also often circulated that labour officers favour the employers which of course is not the case. Why are strikes in Malawi often declared illegal yet staging a strike is the right of every worker? The answer to this question is simple only to those who know the legal procedure for staging a strike. Although staging a strike is a right for every employee, most employees in Malawi hardly know, if not partially know, the procedural steps required in order to stage a legal strike. Most of the strikes that take place in Malawi are declared illegal not because striking is illegal but rather because the legal strike procedure is somehow or somewhere flouted. Two factors account for this problem. First, as observed by some commentators including the International Trade Union Confederation (ITUC), the dispute conciliation and strike procedure as laid down in the Malawi Labour Relations Act of 1996 are too long and complicated and hence not easily followed or not usually exhausted to the extent that some workers choose to ignore them. Second, the strike procedural provisions are written in legal language which is not user friendly to most of the workers. The ultimate aim of this article, therefore, is to expose 40

57 Labour relations act no 16 of 1996 (cap. 54:01) in simplest terms the required procedural steps involved in staging a legal strike in accordance with the Malawi Labour Relations Act of To begin with, there is need, first of all, to define some key concepts that the legal strike procedure in Malawi hinges on. These key terms are labour dispute, collective agreement, strike and lockout. A labour dispute, according to Labour Relations Act, means a difference between an employer or his/her organization and employees or their trade union regarding the terms and conditions of their employment relationship. The employees can start experiencing current state of affairs that may be different from their desired state of affairs. This difference in state of affairs constitutes a problem that is referred to as a dispute. Usually a labour dispute at any workplace may come about because of the employees being interested in having either of the following from the employer. Higher wages, improved conditions of work, enhanced benefits, frequent promotions as well as better frequency in rewards, inflation based wages (living wages), frequent recognition and trade union s help. The demand of either of these things may result into employees conflicting with the employer who may, instead, be interested in achieving the following out of his/her workplace business operations. The employer s interests on the other hand include making profits; keeping operation costs down; realizing higher productivity; achieving company goals; ensuring company/business survival; remaining competitive and keeping trade unions activities out of his /her workplace. Note that each of the employees interests is in sharp contrast to each of the employer s interests hence the high likelihood for a dispute to arise. It is such a dispute, when not resolved, that may end into a strike whose procedure is the subject of this article. Collective agreement is a written, signed and binding document between the employer or employer s organization and employees or trade union, with an effective date, containing their agreed collective bargaining rules and procedures. 41

58 A Summary of Labour Legislation in Malawi - Kalani Malema The term strike, according to Oxford dictionary, is defined as an organized refusal to work by employees of a company or of an individual employer because of a disagreement over an issue such as wage issue or an issue to do with conditions of service. The Labour Relations Act on the other hand defines strike as a concerted action resulting in a cessation of work by employees in a dispute with their employer. Both definitions entail a refusal to work by a group of employees usually having a common understanding or interest. The two definitions also indicate that a strike concerns two parties that have an employment relationship with each other. Thus a group of employees are one party on one hand and the employer is another party on the other hand. A strike however must be differentiated from a lockout. A lockout is a temporary closure of a place of employment, or the suspension of work, or the refusal by an employer to continue to engage for work any number of persons employed by him or her. In this case, the lockout is the opposite of the strike action because it is an industrial action taken by the employer against his /her employees unlike the strike that is taken by the employees against their employer. The employer can use lockout action as a corresponding weapon to resist the collective demands of employees or to enforce his/her terms of employment with employees. Equally, the lockout is the employer s right also provided for in the Labour Relations Act. It must be noted, however, that the suspension of work by the employer as disciplinary measure or in form of lay-offs is not a lockout action. There are four main process stages that must be observed before workers or employers can resort into a strike or lockout action. These stages are existence of a labour dispute between the concerned parties; observance of the mandatory conciliation period; existence of a declared unresolved labour dispute between the concerned parties and observance of the strike intention notice. Details of each of these process stages have been provided in the next following paragraphs. 42

59 Labour relations act no 16 of 1996 (cap. 54:01) 1. Existence of a Labour Dispute Between the Concerned Parties Prior to a strike action, a dispute between the employees and employer must be in existence. The dispute should be reported to the Principal Secretary for Labour who must acknowledge such a dispute report within 7 days from the dispute reporting date. During this process stage, the disputants have an obligation to bargain in attempt to resolve their dispute on their own with reference to their agreed collective agreement procedures. If a dispute still stands upon exhaustion of all their agreed collective bargaining agreements, the law mandates the Principal Secretary for Labour to conciliate the dispute. At this point in time, the dispute settlement procedure graduates into the next process stage of the mandatory conciliation period. This is a period with a minimum of 21 days that must also be complied with. 2. Mandatory Conciliation Period The law names the Principal Secretary for Labour to be the conciliator. However, the law allows any person authorized by the Principal Secretary to act as a conciliator. Furthermore, an authorized person by the Principal Secretary is also allowed by law to appoint another person to conciliate the dispute. This flexibility in law is aimed at ensuring that the process of dispute settlement should not be hampered in cases where there could be so many similar disputes to be attended to at the same time by the same Principal Secretary or where the Principal Secretary may be tied up with other commitments. The question that can be asked and needs to be addressed in respect to the appointment of a conciliator is what happens in cases where one of the disputants is the government or a public institutional body controlled by the government such as the statutory corporations like ESCOM, ADMARC 43

60 A Summary of Labour Legislation in Malawi - Kalani Malema and Water Boards for example? In this case, the law allows the disputants to agree on the person to conciliate them. However, if it happens that the disputing parties fail to agree on the conciliator within 7 days from the date of dispute reporting, then either of the parties is allowed by law to apply to the Industrial Relations Court (IRC) to choose an independent arbitrator for them. The 21 day mandatory conciliation period is a minimum period provided for the dispute conciliation. This means that disputants have the right to agree to extend this conciliation period if they so wish. In the event that the dispute is settled, a certificate of settlement is written by the conciliator, signed and served to either party in a dispute. The certificate s original copy should be filed with the office of the Principal Secretary for Labour. However, in the event that the dispute is not settled after the expiry of the minimum 21 day conciliation period, then a certificate of unresolved dispute is written, signed and served to either party in a dispute with its original copy filed with the office of the Principal Secretary for Labour. At this point, the dispute is declared unresolved dispute. 3. Existence of the Declared Unresolved Dispute Between the Concerned Parties. The declared unresolved labour dispute between the employees and employer must indeed be in existence. The dispute must be declared unresolved by the dispute conciliator through writing. There are three conditions that would qualify a dispute to be unresolved. These are if a minimum of 21 day mandatory conciliation period has elapsed from the dispute reporting date; if one of the parties fails to attend the conciliation proceedings without informing the other party and the conciliator; and if the parties fail to reach an agreement on the dispute settlement. A combination of the first condition and any one of the other two conditions or both of them necessitates the dispute conciliator to declare 44

61 Labour relations act no 16 of 1996 (cap. 54:01) the dispute unresolved. This means that an unresolved dispute can be in existence but not yet as a necessity for either of the parties to a dispute to issue a strike notice, until the 21 day conciliation period expires. The Industrial Relations Court in this process stage, like in the first process stage, has a role to play in respect to the unresolved labour dispute. It is mandated, upon receiving an application from either party to the unresolved dispute, to determine their dispute that involves all or one of the following: the interpretation or application of any statutory provision; the interpretation or application of a collective agreement provision; the interpretation or application of a contract of employment. In addition, the court has a role to determine the parties unresolved dispute that concerns essential services, in the same manner, upon receiving the application to do so from the Principal Secretary for Labour. Furthermore, parties to the unresolved dispute that does not involve either the interpretation or application of statutory provision, contract of employment and/or collective agreement provision or the essential services, provided they agree, can refer their dispute to IRC for determination. It must be noted that it is a law requirement for the Principal Secretary for Labour or for either of the party to the unresolved dispute involving the essential services and interpretation or application of some of the parties employment issues respectively, to refer to IRC for determination. Hence such a requirement must be observed if particular parties unresolved dispute calls for such a requirement. The existence of the declared unresolved dispute if not pending in a court of law for determination and if it does not concern workplace employees involved in the delivery of essential services calls for either party to the dispute to take an industrial action upon serving a notice to either party according to the law. 45

62 A Summary of Labour Legislation in Malawi - Kalani Malema 4. Observance of the Strike Intention Notice Once the unresolved dispute is not pending in a court of law for determination and if it does not concern workplace employees involved in the delivery of essential services, the law necessitates either party to a dispute intending to strike or lockout to serve a 7 day notice to the other party with a copy to the Principal Secretary for Labour. It is within the emphasis of the law that only after the expiry of the 7 day notice period, can the party with strike or lockout intention, proceed with the action otherwise the strike/ lockout action would still be illegal if done before the expiry of the 7 day served notice. In summary, the Malawi Labour Relations Act of 1996 provides for the industrial dispute (strike/lockout) settlement process procedure that has 7 days between reporting and acknowledging receipt of the report; 21 days from the date of acknowledgement of the report to the end of conciliation process period; and 7 days from the end of the conciliation process period to a strike/lockout. This gives a minimum total of 35 days (i.e ) before a strike or lockout, which can be legally supported by law, takes into effect. The term minimum fits here because, more than 35 days before the strike or lockout action takes place is allowed by law in cases where the parties agree to extend their conciliation period beyond the prescribed 21 day conciliation period. This means that every strike action in Malawi must precede the observance of a 7 day strike intention notice that is written by either party to the unresolved dispute with the intention to stage a strike having copied the other party and the Principal Secretary for Labour. The issuance and observance of the strike intention notice must precede the declared unresolved dispute by the dispute conciliator following the expiry of the 21 day minimum mandatory conciliation period whenever the parties unresolved dispute does not concern workplace employees delivering essential services nor does the dispute pends in a court of law for determination. The observance of the mandatory conciliation period must precede the existence of a labour dispute that should have been reported to the Principal Secretary for Labour for the purpose of conciliation following the Secretary s acknowledgement 46

63 Labour relations act no 16 of 1996 (cap. 54:01) of the reported dispute, to be done within 7 days from the dispute reporting date, and the exhaustion by the disputants of all their agreed collective agreement procedures if any. The 35 days minimum total is the only accepted procedural time frame provided for in the Labour Relations Act which when followed shall help to overcome the challenge of which most employees in Malawi stage strike actions that are illegal having flouted the law required process. It is therefore high time Malawians especially the employees got interested to read, to know and to apply the strike procedure that would help them exercise their right to strike in responsible manners and within the requirements of our own adopted laws. Source: An unpublished article written by Kalani Malema, author of this book,

64 4 Occupational Safety, Health and Welfare (OSHW) Act, No. 21 of 1997 This Act repealed and replaced the Factories Act, Cap. 55:07 of Aim of the Act This is an Act to make provision for the regulation of: 1. the conditions of employment in workplaces as regards the safety, health and welfare of employees; 2. the inspection of certain plant and machinery; 3. the prevention and regulation of accidents occurring to employees or to any authorized persons going into the workplaces Application of the Act The Act applies to: 1. any workplace in which or within which there is one or more persons employed for the purpose of contract of employment; 2. every workplace whether private or public (government) i.e. Government works that involves building operations and works of engineering construction undertaken by or on behalf of the Government; and/or the employment by or under the Government, of persons engaged in demolishing, painting or renovating buildings. 48

65 Occupational safety, health and welfare (oshw) act, no. 21 Of 1997 Box 7: The Background of OSH Employment Standards in Malawi OSH Workplace / Employment Standards in Malawi The current Occupational Safety and Health employment standards in Malawi are contained in the OSHW Act enacted by Parliament in 1997 to replace the old Factories Act of OSHW Act, unlike the Factories Act, provides initiatives in moving away from purely technical and punitive aspects of safety regulation to those of greater employee participation through health and safety committees as well as through the appointment of safety representatives at every workplace. In other words, the new OSH Act promotes greater participative and preventive health and safety measures at the workplace and moves even closer to international OSH employment standards that are provided for in the International Labour Organisation (ILO) Convention No. 184 on Occupational Safety and Health although this ILO convention has not yet come into force since its adoption on 21 st June 2001 by ILO member states. The Malawi OSH employment standards to be observed and/or maintained at a workplace as provided in the new OSHW Act are grouped into four main categories as follows: 1. Health and Welfare Conditions; 2. Workplace Machinery Safety; 3. Health and Safety Conditions; and 4. Dangerous Occurrences and Industrial Diseases. The Act thus provides for the roles and responsibilities to be fulfilled by employers and employees as well as by all other relevant stakeholders involved in the safeguard of OSH workplace issues. In this regard, a summary of OSHW Act coverage in this book focuses on provisions in respect of the roles and responsibilities of various OSH workplace players followed by provisions on each of the four stated categories of OSH employment standards. 49

66 A Summary of Labour Legislation in Malawi - Kalani Malema 4.3. Duties and Responsibilities Of Employers to Employees Employers have general duty to ensure the safety, health and welfare at work of all his/her employees. In particular, the employer s duties include the following: the provision and maintenance of plant and systems of work that are safe and without risks to health; the provision and maintenance of means of access to and egress from it that are safe and without such risks as regards any place of work under the employer s control; the provision and maintenance of a working environment for his/ her employees that is safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work; the provision of maintenance in a manner that is safe and without risks to health; making arrangements for ensuring safety and absence of risks to health in connection to the use, handling, storage and transportation of articles and substances; the provision of information, instruction, training and supervision to ensure the safety and healthy at work of his/her employees; to prepare and revise the general policy with respect to the safety and health at workplace of his/her employees; the organization and arrangements for carrying out that policy; to bring the statement and any revision of it to the notice of all of his/ her employees; the duty to consult with any safety representatives at work with a view to the making and maintenance of arrangements which will enable the employer and his/her employees to cooperate effectively in promoting and developing measures to ensure the safety and health at work of the employees, and in checking the effectiveness of such measures; the duty on request by the safety representatives to establish a safety committee to review measures taken to ensure the safety and health at work of employees, and the safety committee shall have such other functions as may be prescribed; the duty not to levy any charges on employees. 50

67 Occupational safety, health and welfare (oshw) act, no. 21 Of Of Employees at Workplaces To take reasonable care for the safety and health of himself/herself and that of other people who may be affected by his/her acts or omissions. To cooperate with the employer or other people in order to enable his/her workplace duty to be performed or complied with without difficulties. Every employee, like any employer and any other person, should not intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare Of persons in control of workplaces in relation to harmful emissions It is a duty of every person having control of any premises to use the best practicable means for preventing the emission into the atmosphere from the premises of noxious or offensive substances, and for rendering harmless and inoffensive, such substances that may be emitted Of Manufacturers or Suppliers with respect to articles and substances used at workplaces Duty of every employer to request from any person who designs, manufactures, imports or supplies any article for use at a workplace: 1. to ensure that the article is designed and constructed to be safe and without risks to health when properly used, 2. to carry out or arrange for carrying out some testing and examination, so that his/her duty as manufacturer to ensure risk free articles, is effectively performed. Duty of every person who designs or manufactures any article for use at a workplace to carry out any research with a view to discover and to eliminate or minimize any risks to safety or health to which the design or manufacture of the article may give rise. Duty of every person who erects or installs any article for use at a workplace in any premises where that article is to be used by persons at work to ensure that nothing about the way in which the article is erected or installed makes it unsafe or risky to health when properly used. Duty of every person who manufactures, imports or supplies any substance for use at a workplace: 51

68 A Summary of Labour Legislation in Malawi - Kalani Malema 1. to ensure that the substance is safe and without risks to health when properly used, 2. to carry out or arrange to carry out some testing and examination necessary for his/her performance as effective manufacturer, 3. to take steps to secure that there is available, adequate information about the results of any relevant tests which have been carried out on the substance, and about any conditions necessary to ensure that it will be safe and without risks to health when properly used. Duty of every person who undertakes the manufacture of any substance for use at a workplace to carry out any research with a view to discover and eliminate or minimize any risks to safety or health to which the substance may give rise Health and Welfare Conditions to be Maintained at a Workplace Cleanliness: every workplace should be kept clean, and free from effluvia arising from any drain, sanitary convenience or nuisance. Overcrowding: a workplace should not, while work is carried on, be so overcrowded as to cause risk of injury to the health of the employees. Ventilation and temperature: every workplace should have: 1. effective and suitable provision for securing and maintaining the circulation of fresh air in each workroom, 2. adequate ventilation of the room without fumes, dust and other impurities generated in the course of any process or work carried on in the workplace as may be injurious to health. Lighting: every workplace should have effective provision for securing and maintaining sufficient and suitable lighting, whether natural or artificial, in every part of a workplace in which employees are working or passing. Drainage of floor: effective means should be provided and maintained for drainage and disposal of the wet where any work process is carried on which can make the floor at any workplace to be wet, the wetness that is capable of being removed by drainage. Sanitary conveniences: every employer should: 1. provide sufficient and suitable sanitary conveniences for employees in the workplace, which should be maintained and kept clean, 52

69 Occupational safety, health and welfare (oshw) act, no. 21 Of make effective provision for lighting, 3. make effective provision for the conveniences i.e. employees toilets that should be separated where employees of both sexes are employed except in the case of workplaces where the only employees are members of the same family dwelling in such workplaces. Washing facilities: every employer should provide at a workplace separate washing facilities for male and female employees that are easily accessible, in the proportion of at least one wash hand basin and one shower for every 20 employees, per shift where shifts are operational. Drinking water: every employer should provide at a workplace an adequate supply of clean and potable drinking water, maintained at suitable points conveniently accessible to all employees. Change rooms: every employer should provide, for the use of employees at a workplace, adequate and suitable accommodation for hanging or stowing personal clothing not worn during working hours, and where protective clothing is provided to employees, a suitable place or places shall be provided for the storage of such protective clothing. Seats: every employer should provide and maintain at a workplace a sufficient number of seats for the use of those employees whose work is ordinarily performed while standing, and should allow such employees to take advantage of any opportunities for resting which may occur in the course of their employment. Facilities for meals: every employer should provide and maintain in good condition, suitable facilities where employees may prepare and consume their meals. First aid: every employer should provide and maintain a first aid box or cupboard of the prescribed standard which is readily accessible. Such first aid box or cupboard should be placed under the charge of a qualified First Aider who should be readily available during working hours. Medical examination: where the nature of any process, activity or occupation in a workplace needs any employee to be examined by a medical practitioner, the Director of OSH department in the Ministry of Labour may direct that such employee should be examined 53

70 A Summary of Labour Legislation in Malawi - Kalani Malema before he/she is engaged in the process, activity or occupation at convenient intervals. Notification of accidents to relevant authorities must be done timely and accordingly. Notification of Industrial diseases to relevant authorities must be done timely and accordingly. Posting an Abstract of this Act at a conspicuous place of work is a must. Maintenance of general work register is also a requirement Machinery Safety at a Workplace Fencing and guarding of dangerous machinery: every dangerous part of any moving machinery or component e.g. driving belt or strap of a maize/saw mill etc should be securely fenced, unless by construction, it is safe to every person working on the premises as it would be if securely fenced. The examination, lubrication or other operation must be carried out by a worker who: 1. has attained the apparent age of 18 years; 2. has been sufficiently trained for the purpose of the work entailed by, and is acquainted with, the dangers of moving machinery arising in connection with such examination, lubrication or other operation; 3. has been appointed by the employer of the workplace to carry out such examination, lubrication or other operation, and has been furnished by the employer with a copy of such certificate signed by him/her; 4. has been provided by the employer with, and is wearing, a closefitting and single-piece overall suit in good repair, which is so fastened as not to have dangling loose ends and has no external pockets other than a hip pocket. Construction and maintenance of fencing: all fencing and other safeguard provided should be substantial construction, and should be constantly maintained and kept in a position while the parts required to be fenced or safeguarded are in motion or in use, except when any such parts are necessarily exposed for examination and for any lubrication or adjustment shown by such examination to be 54

71 Occupational safety, health and welfare (oshw) act, no. 21 Of 1997 immediately necessary with all the conditions specified in this Act (s. 36) complied with. Hoists and lifts: every hoist and lift at a workplace should be of good mechanical construction, sound material and adequate strength, and should be properly maintained, together with all gates, interlocking or other devices well fitted. Escalators: every escalator in a workplace should be examined by a competent person after every period of six months, and a report of the result of every such examination in the prescribed form and containing the prescribed particulars should be signed by the person making the examination and should be submitted to the appropriate authority within 14 days of the date of examination. Cranes and other lifting machines: all parts and working gear whether fixed or movable, including the anchorage and fixing appliances, of every crane or other lifting machine should be of good construction, sound material, adequate strength and free from patent defect, and should be properly maintained. Chains, ropes and lifting tackle: every employer should comply with the following provisions in relation to every chain, rope or lifting tackle used in a workplace for the purpose of raising or lowering persons, goods or materials: 1. no chain, rope or lifting tackle should be used unless it is of good construction, sound material, adequate strength and free from patent defect; 2. a table showing the safe working loads of every kind and size of chain, rope, or lifting tackle in use and, in the case of a multiple sling, the safe working loads at different angles of the legs should be prominently displayed on the premises, or alternatively in relation to any lifting tackle the safe working load, or in the case of multiple sling, the safe working load at different angles of the legs, should be plainly marked upon it; 3. no chain, rope or lifting tackle should be used for any load exceeding the safe working load; 4. all chains, ropes and lifting tackle in use should be thoroughly examined by a competent person at least once every period of 6 months; 5. no chain, rope or lifting tackle, except a fibre rope or fibre sling, 55

72 A Summary of Labour Legislation in Malawi - Kalani Malema should be taken into use in any workplace for the first time unless it has been tested and thoroughly examined by a competent person, who shall determine the safe working load; 6. wrought iron chains or lifting tackle in use in any workplace should be annealed or otherwise treated by heat at such intervals as required. Note that lifting tackle includes chain, slings, rope, rope slings, hooks, shackles and swivels. Steam boilers: every steam boiler and all its fittings and attachments should be of good construction, sound material, adequate strength and free from patent defect, and should be properly maintained. Steam boiler means any closed vessel in which for any purpose steam is generated under pressure greater than atmospheric pressure, and includes any economizer used to heat water being fed to any such vessel, and any super heater used for heating steam. Steam receivers and steam containers: every steam receiver and all its fittings should be of good construction, sound material, adequate strength and free from patent defect, and should be properly maintained. Air receivers: every air receiver and its fittings should be of sound construction and conform with acceptable international specifications as may be approved by the Director, generally or in any particular case. Every air receiver should: 1. have marked upon it, with plainly visible marks, the safe working pressure; 2. be constructed to withstand with safety the maximum pressure which can be obtained in the compressor, or 3. be fitted with a suitable reducing valve or other suitable appliance to prevent the safe working pressure of the receiver being exceeded; 4. be fitted with a suitable safety valve adjusted to permit the air to escape as soon as the safe working pressure is exceeded; 5. be fitted with a correct pressure gauge indicating the pressure in the receiver in kilograms per square centimetre; 6. be fitted with a suitable appliance for draining the receiver; 7. be provided with a suitable manhole, handhole or other means 56

73 Occupational safety, health and welfare (oshw) act, no. 21 Of 1997 to allow the interior of the air receiver to be thoroughly cleaned; and 8. bear a distinguishing mark which should be easily visible. Gas plants: every gas generator, cleaning plant and storage plant should be installed in the open air. Gas cylinders: cylinders for compressed, dissolved or liquefied gases should be: 1. of sound material and good construction, and free from patent defects; 2. distinctively identified as to their contents; 3. fitted with a suitable pressure gauge; 4. protected against excessive variation of temperature, direct rays of sunlight and continuous dampness while in storage; 5. whether charged or empty, maintained in an upright position; 6. handled with care to avoid violent shocks; and 7. transported on suitably designed carriers Health and Safety Conditions at a Workplace Hazardous substances 1. Manufacturers, importers and suppliers of hazardous substances used at workplaces, including those in the agricultural sector, should provide sufficient information on such substances with the precautions to be taken. 2. In the use of all materials containing hazardous substances and in the removal and disposal of wastes; the health of the workers and of the public and the preservation of the environment should be safeguarded. 3. Where the use of hazardous chemicals is likely to penetrate the skin and cause rash, skin contact with hazardous chemical should be avoided. 4. Personal hygiene and the type of clothing worn should be such as to enable rapid removal of any chemical from skin contact. 5. Where it is necessary to deal with proven carcinogenic substances, particularly in work involving bituminous tar, asphalt, asbestos fibres, pitch, heavy oils, and aromatic solvents, strict measures should be taken to avoid inhalation and skin contact. Vessels, etc., containing dangerous substances 57

74 A Summary of Labour Legislation in Malawi - Kalani Malema 1. Every fixed vessel, structure, sump or pit (containing any scalding, corrosive or poisonous liquid) of which the edge is less than one metre above the highest ground or platform from which a person might fall into should either be securely covered or be securely fenced to at least one metre above that ground or platform. 2. Where any fixed vessel, structure, sump or pit contains any scalding, corrosive or poisonous liquid and is not securely covered, no ladder, stair or gangway should be placed above, across or inside such vessel, structure, sump or pit unless the ladder, stair or gangway is: at least 500 millimeters wide; and securely fenced on both sides to a height of at least one metre and securely fixed. Bulk storage of dangerous substances 1. Bulk storage of dangerous substances should only be located at a suitable site approved by the competent authority. 2. Every area for the bulk storage of dangerous substances should: be constructed and maintained with suitable material; be adequately ventilated; have adequate storage space; be capable of containing not less than 75 % of spillage; have an inventory of the substances in storage maintained and prominently displayed. 3. Storage tanks for the bulk storage of dangerous substances should: be constructed and maintained with suitable material according to approved standards; have suitable containment for spillage of not less than 75 %; have suitable venting facilities. Precautions in relation to explosives, etc. 1. Where any grinding, sieving or other process giving rise to dust, gas or vapour are taking place and if it can escape into any workroom, dust, gas or vapour of such a character to the extent that it can explode on ignition, all practicable steps should be taken to prevent such an explosion by: enclosure of any plant used in the process; 58

75 Occupational safety, health and welfare (oshw) act, no. 21 Of 1997 removal or prevention of accumulation of the dust, gas or vapour; and exclusion or effective enclosure of possible sources of ignition. 2. No plant, tank or vessel which contains or has contained any explosive or inflammable substance should be subjected to: any welding, brazing or soldering operation, any cutting operation which involves the application of heat, until all practicable steps have been taken to remove the explosive or inflammable substance and any fumes arising from there, to render them non-explosive or non-inflammable; and if any plant, tank or vessel has been subjected to any such operation as stated, no explosive or inflammable substance should be allowed to enter the plant, tank or vessel until the metal has cooled sufficiently to prevent any risk of igniting the substance. Precautions in relation to work in confined spaces 1. Where work is done inside any chamber, tank, vat, pit or other confined space in which dangerous fumes are likely to be present; the confined space should be provided with adequate means of egress for persons entering or working inside. no person should enter the confined space for any other purpose apart from the intended ones. Prevention of fire 1. There should be provided and maintained in every workplace, adequate and suitable means for extinguishing fire, which should be readily accessible. 2. Means of escape in case of fire: Every workplace should have adequate means of escape in case of fire for the employees. Every means of escape in case of fire should be properly maintained and kept free from obstruction. 3. The contents of any room with employees should be so arranged or disposed such that there is a free passageway for all employees in the room to a means of escape in case of fire. 4. The doors of a workplace and of any workplace room and any 59

76 A Summary of Labour Legislation in Malawi - Kalani Malema other doors which afford a means of exit for employees in the workplace from any building or from any enclosure in which the workplace is situated, should not be locked or fastened in such a manner as not to be easily and immediately opened from the inside in case of fire. 5. Any door in a workplace opening on to any staircase or corridor from any room with more than 10 employees and all other doors affording a means of exit from the workplace by the workplace employees if it is at any workplace constructed or converted for use as a workplace after the commencement of OSHW Act, should, be constructed to open outwards except in the case of sliding doors. 6. Doors in a workplace giving access to stairways should not open immediately on to a flight of stairs, but on to a landing of adequate width, in no case less than the width of the door opening on to that landing. 7. Every window, door or other exit affording means of escape in case of fire or giving access other than the means of exit in ordinary use, should be distinctively and conspicuously marked by a notice printed in red letters of an adequate size. 8. In every workplace, effective steps should be taken to ensure that all the employees are familiar with the means of escape in case of fire, and with the routine to be followed in case of fire. 9. At any workplace with more than 20 employees in the same building, or at any workplace where explosive or highly inflammable materials are stored or used in any building with employees, effective provision should be made for giving warning in case of fire, and the provision of such a warning should be operated without exposing any person to undue risk, and be clearly audible throughout the workplace. 10. Every hoist way or lift way inside a building constructed after the commencement date of this Act, should be completely enclosed with fire-resisting materials, and that all means of access to the hoist or lift should be fitted with doors of fire-resisting materials. Protective clothing and appliances Suitable protective clothing and appliances, including suitable gloves, footwear, screens, goggles, ear muffs and head covering, 60

77 Occupational safety, health and welfare (oshw) act, no. 21 Of 1997 should be provided and maintained at no cost to the employees for their use as required at any workplace with workers employed in any process involving excessive exposure to heat, cold, noise, wet or to any injurious or offensive substance, or any welding process. Removal of dust and fumes 1. In every workplace where there is given off any dust or fume or other impurity likely to be injurious or offensive to the employees or where there is any substantial quantity of dust of any kind, all practicable measures, including the supply of breathing masks, should be taken to protect the employees against inhalation of the dust or fume or other impurity and to prevent its accumulating in any workroom. 2. And where the nature of the process makes it practicable, exhaust appliances should be provided and maintained, as near as possible, to the point of origin of the dust or fume or other impurity, so as to prevent it from entering the air of any workroom. Protection of eyes 1. Where in any workplace workers are employed in any process involving dry grinding of metals, welding or cutting of metals by means of an electrical, oxy-acetylene or similar process or in any other process likely to entail injury to the eyes, suitable goggles or effective screens should be provided to protect the eyes of workers. 2. Where in any workplace electric arc welding is carried on, effective provision should be made to prevent workers, other than employees doing the welding process, from exposing to the electric arc flash. Ionizing radiation 1. Ionizing and laser radiation likely to jeopardize the health and safety of workers should be reduced to practicable levels in every workplace. 2. All workers performing operations where they are exposed to non-ionizing radiations should be provided with adequate protection, and in the case of welding, torch cutting and soldering operations, with eye and face protection. 3. In order to detect pre-cancerous lesions of the skin, workers continuously working under non-ionizing radiation exposure, including exposure to the sun should be under medical surveillance. 61

78 A Summary of Labour Legislation in Malawi - Kalani Malema Noise and vibration 1. Noise and vibrations likely to injure the health of workers should be reduced to practicable levels in every workplace. 2. No person should be exposed to sound levels exceeding 85 db(a) of reasonably constant level for 8 hours continuously in any one day. 3. All areas, where persons may be exposed to sound levels exceeding the limits set out in this section, should be identified as earprotection areas and should be suitably cordoned off. Lifting and handling of weights 1. Where reasonable and practicable, mechanical appliances should be provided and used for lifting and carrying loads in all workplaces. 2. No person should be employed to lift, carry or move any load with weight likely to injure his/her health or jeopardize his/her safety. Information and training 1. Every worker in a workplace should be adequately and suitably informed of potential health hazards to which he may be exposed to at the workplace; and should also be instructed and trained in the measures available for prevention and control and protection against health hazards at the workplace. 2. All information, instruction and training referred above should be given in a language understood by the workers and that any written, oral, visual and participative approaches should be used to ensure that the worker assimilates the information, instruction or training, as the case may be Dangerous Occurrences and Industrial Diseases Dangerous occurrences 1. All workplace dangerous occurrences like workplace accidents which can: cause loss of life to an employee in that workplace; or disable or is capable of disabling any employee from carrying out normal duties at which he/she is employed; should immediately be reported to the Director of OSHW department in the Ministry of Labour, on a written notice in the prescribed 62

79 Occupational safety, health and welfare (oshw) act, no. 21 Of 1997 form accompanied by the prescribed particulars of the victim employee. 2. And in the case of death or serious injury, the written notice should, where practicable, be preceded by a telephone notification or any fastest means of communication available to facilitate immediate investigation. 3. First schedule of OSHW Act contains the following dangerous occurrences: Bursting of a revolving vessel, wheel, grindstone or grinding wheel, moved by mechanical power. Collapse or failure of a crane, derrick, winch, hoist or other appliance used in raising or lowering persons or goods, or the overturning of a crane. Explosion or fire causing damage to the structure of any room or place in which persons are employed, or to any machine or plant contained in the room, and resulting in the complete suspension of ordinary work in such room or place or stoppage of machinery or plant for not less than 24 hours. Electrical short circuit or failure of electrical machinery, plant or apparatus, attended by explosion or fire and causing structural damage, and involving its stoppage or disuse for not less than 24 hours. Explosion of a receiver or container used for the storage at a pressure greater than atmospheric pressure of any gas or gases (including air), or any liquid or solid resulting from the compression of gas. Explosion from a steam boiler, steam receiver or air receiver. Industrial diseases The employer of any workplace who believes or suspects, or has reasonable ground for believing or suspecting, that any case of industrial disease listed in the Second Schedule has occurred in the workplace should, like the accidents and dangerous occurrences, be reported to the Director. Second schedule of OSHW Act contains the following industrial diseases: 1. Lead poisoning, including poisoning by any preparation or compound of lead; 63

80 A Summary of Labour Legislation in Malawi - Kalani Malema 2. Phosphorus poisoning by phosphorus or its compounds; 3. Mercurial poisoning; 4. Manganese poisoning; 5. Arsenical poisoning by arsenic or its compounds; 6. Aniline poisoning; 7. Carbon bisulphide poisoning; 8. Benzene poisoning, including poisoning by any of its homologous, or their intro or amido derivatives; 9. Chrome ulceration due to chromic acid or bichromate of potassium, sodium or ammonium, or any preparation of these substances; 10. Anthrax; 11. Silicosis; 12. Pathological manifestations due to: radium or other radioactive substances; and X-rays; 13. Toxic anaemia; 14. Primary epitheliomatous ulceration of the skin, due to the handling or use of tar, pitch, bitumen, mineral oil or paraffin, or any compound, product or residue of any of these substances; 15. Compressed air illness; 16. Asbestosis; 17. Byssinosis; 18. Bagassosis; 19. Tobacosis; 4.8. Offences, Penalties and Legal Proceedings Offences Every person (employer or employee; manufacturer or supplier or any other obligated user of a workplace) who contravenes or fails to comply with the provisions or regulations of OSHW Act commits an offence. General penalty 1. Any person guilty of an offence under OSHW Act for which no express penalty is provided shall be liable to a fine of K10, If the offence in respect of which he was convicted continued after the conviction he/she shall, in addition, be liable to a fine of 64

81 Occupational safety, health and welfare (oshw) act, no. 21 Of 1997 K500 for each day the offence continues. Penalty in case of death or bodily injury If any person dies or suffers any bodily injury as a result of the workplace employer having contravened any Act provision, the employer shall be further liable to a fine of K20, 000 and to imprisonment for 12 months. Box 8: International Labour Organisation Conventions Relevant to EA International Labour Conventions ILO Convention No. 26 of 1928: Minimum Wage-Fixing Machinery. The International Labour Organisation adopted the Minimum Wage- Fixing Machinery Convention on 16 th June, This is a convention that provides for the minimum wage-fixing machinery. It came into force on 14 th June, 1930 and was ratified by Malawi in ILO Convention No. 99 of 1951: Minimum Wage Fixing Machinery (Agriculture). The International Labour Organisation adopted the Minimum Wage Fixing Machinery (Agriculture) Convention on 28 th June, This is a convention that provides for the minimum wage fixing machinery in agriculture. It came into force on 23 rd August, 1953 and was ratified by Malawi in ILO Convention No. 131 of 1970: Minimum Wage Fixing Convention. The International Labour Organisation adopted the Minimum Wage Fixing Machinery Convention on 26 th June, This is a convention that provides for the minimum wage fixing with special reference to developing countries. It came into force on 29 th April, 1972 and was ratified by Malawi government. 65

82 A Summary of Labour Legislation in Malawi - Kalani Malema ILO Convention No. 29 of 1930: Forced Labour. The International Labour Organisation adopted the Forced Labour Convention on 28 th June, This is a convention that provides for the complete suppression of forced or compulsory labour. It came into force on 1 st May, 1932 and was ratified by Malawi in ILO Convention No. 105 of 1957: Abolition of Forced Labour. The International Labour Organisation adopted the Abolition of Forced Labour Convention on 25 th June, This is a convention that provides for the prevention of compulsory or forced labour from developing into conditions analogous to slavery. It came into force on 17 th January, 1959 and was ratified by Malawi in ILO Convention No. 64 of 1939: Contracts of Employment (Indigenous Workers). The International Labour Organisation adopted the Contracts of Employment (Indigenous Workers) Convention on 27 th June, This is a convention that provides for the regulation of written contracts of employment of indigenous workers. It came into force on 8 th July, 1948 and was ratified by Malawi in ILO Convention No. 86 of 1947: Contracts of Employment (Indigenous Workers). The International Labour Organisation adopted the Contracts of Employment (Indigenous Workers) Convention on 11 th July, This is a convention that provides for the maximum length of contracts of employment of indigenous workers. It came into force on 13 th February, 1953 and was ratified by Malawi in ILO Convention No. 100 of 1951: Equal Remuneration. The International Labour Organisation adopted the Equal Remuneration 66

83 Occupational safety, health and welfare (oshw) act, no. 21 Of 1997 Convention on 29 th June, This is a convention that provides for the principle of equal remuneration for men and women workers for work of equal value. It came into force on 23 rd May, 1953 and was ratified by Malawi in ILO Convention No. 111 of 1958: Discrimination (Employment and Occupation). The International Labour Organisation adopted the Discrimination (Employment and Occupation) Convention on 25 th June, This is a convention that provides for the anti-discrimination practices in the field of employment and occupation. It came into force on 15 th June, 1960 and was ratified by Malawi in ILO Convention No. 138 of 1973: Minimum Age. The International Labour Organisation adopted the Minimum Age Convention on 26 th June, This is a convention that provides for the minimum age for admission into employment. It came into force on 19 th June, 1976 and was ratified by Malawi in ILO Convention No. 158 of 1982: Termination of Employment. The International Labour Organisation adopted the Termination of Employment Convention on 22 nd June, This is a convention that provides for the protection involving termination of employment at the initiative of the employer. It came into force on 23 rd November, 1985 and was ratified by Malawi in ILO Convention No. 182 of 1999: Worst Forms of Child Labour. The International Labour Organisation adopted the Worst Forms of Child Labour Convention on 17 th July, This is a convention that provides for new instruments for the prohibition and elimination of the worst forms of child labour. It came into force on 19 th November, 2000 and was ratified by Malawi in

84 A Summary of Labour Legislation in Malawi - Kalani Malema The ratification of these conventions by Malawi government means that provisions contained in such conventions are part and parcel of Malawian labour laws. In this regard, Malawi domesticated some provisions of these conventions in the Employment Act (EA), of 2000 which is a law to establish, reinforce and regulate minimum standards of employment with the purpose of ensuring equity necessary for enhancing industrial peace, accelerated economic growth and social justice. 68

85 5 The Employment Act No. 6 of 2000 (Cap. 55:01) This Act repealed and replaced the Regulation of Minimum Wages and Conditions of Employment Act, Cap 55:01; the Employment Act, Cap. 55:02; the Employment of Women, Young Persons and Children Act, Cap. 55:04; the Labour Legislation (Miscellaneous Provisions) Act, Cap 56:01 and the African Emigration and Immigrant Workers Act, Cap. 56: Aims of the Act The Act aims at reinforcing and regulating minimum standards of employment in order to ensure equity, which is necessary for: 1. enhancing industrial peace, 2. accelerated economic growth, and 3. social justice 5.2. Application of the Act This Act applies to all employees (whether temporary or permanent) and employers in the following: 1. in the private sector, 2. in the Government, and 3. in any public authority or enterprise. However, the Act exempts members of: 1. the Armed forces, 2. the Prison service, and 3. the Police service. Except those employed in civilian capacities (support staff members) in the Armed, Police and Prison service institutions. 69

86 A Summary of Labour Legislation in Malawi - Kalani Malema 5.3. Definitions of key words in the Act. Employee means: 1. a person who offers his/her services under an oral or written contract of employment; 2. any person who performs work or services for another person (employer) for remuneration on such terms and conditions that he/she is in a position of economic dependence on that person and is under an obligation to perform duties for that person within an employee/employer relationship other than that of an independent contractor/employer relationship. 3. This means that an independent contractor is not an employee of an employer. Employer means: Any person, body corporate (institution), organization or public authority or body of persons that employs or engages a person (employee) to work for pay. Remuneration means the wage or salary and any additional benefits, allowances or emoluments of any form payable, directly or indirectly, either in cash or in kind, by the employer to the employee which arises out of the employee s employment. Wage means all earnings designated or calculated that are: 1. capable of being expressed in terms of money; 2. fixed by mutual agreement i.e. contractual terms or by law; 3. which are payable by virtue of a written or unwritten contract of employment by an employer to an employee for work done or to be done or for service rendered or to be rendered Fundamental Principles of Employment The Act provides for the following principles: 1. Performance of forced labour is prohibited. This means no person shall be made to work against his/her will. Any person who forces another person to work against his/her will or forces a person to work without pay commits a punishable offence and can be fined or imprisoned for 2 years by competent courts of law. Forced labour excludes: Work of purely military in nature. Any work or service that forms part of normal obligations of 70

87 The employment act no. 6 Of 2000 (cap. 55:01) any citizen. Any work that a person is required to carry out after being convicted by any court. Any work or service that a person may be reasonably required to perform in emergency circumstances. Any work that the community members may be required to do for the benefit of their own communities. 2. No discrimination at work is allowed. Discrimination means any attempt to favour one person over another without justification. No any employer shall discriminate against any employee or prospective employee on the grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth, marital or other status or family responsibilities in respect of the following: recruitment, training, promotion, terms and conditions of employment, and termination of employment. However positive discrimination or affirmative action to some extent may be allowed. 3. Equal pay for work of equal value is mandatory. Every employer shall pay employees doing work of equal value the same amount of money without favour based on, sex, race, colour language, religion, political or other opinion, nationality, ethic or social origin, disability, property, birth, marital or other status, or family responsibilities. 4. Child labour is prohibited. Child Labour, according to WFCL convention is defined as any hazardous work (which is mentally, physically, socially or morally dangerous and harmful to a child) done by those children below 18 yrs, in addition to the WFCL that are prohibitive for any one child under the age of 18. The employment of children below the age of 14 years is not allowed by this law. Children from ages of 14 and 17 years may be employed, but the work must not: be hazardous to their health, safety, education, morals, or development, 71

88 A Summary of Labour Legislation in Malawi - Kalani Malema make it difficult for them to attend school, or any other vocational or training programme. In order to prevent and check child labour, every employer is required to keep a register of any person under the age of 18 years employed by or working for him/her. The Act allows the Minister responsible for Labour, in consultation with relevant organizations of employers and employees, to specify (by notice published in the gazette) occupations or activities which are likely to be hazardous to legally working children. Thus, in 2012, the list of hazardous work for children in Malawi was finalized and gazetted Employment (Prohibition of Hazardous Work for Children) Order of 2012 Reference Document Malawi Gazette Supplement of 17 th February, 2012 as Government Notice No. 1, containing list of hazardous work for children in Malawi. Application of the Hazardous Work Order 1. Applies to all those children in employment. 2. The term employment refers to the existence of two parties engaged in a relationship of which one is an employer and the other one is an employee- the child employee in this case. Gazette key terms /concepts to be known Piece Work means the work in terms of which the remuneration of employee is based mainly on the quantity of work done. Task Work means the work in terms of which the remuneration of employee is based mainly on the completion of the set work -tasks. Hazardous Work - Hazardous work is any work done or to be done by a child which is harmful to the child s physical, psychological and moral survival, growth and development. Hazardous work for the child - is defined as child labour (work) done by a child in dangerous or unhealthy conditions that could result in a child being killed, or injured or made ill, as well as work that may affect the child s psychosocial health. Offences and Penalties with respect to this Order A person who contravenes any provision of this Order commits an 72

89 The employment act no. 6 Of 2000 (cap. 55:01) offence and shall, upon conviction, be liable to: 1. a fine of one thousand Kwacha (Mk1,000.00), and 2. to imprisonment for three years. Note that the actual fine to be paid by the convicted offender may be determined by Courts in accordance with the Fine Conversion Act. Children`s Working Hours 1. School going / enrolled children aged 15 to 17 years must work for a maximum of 40 hours in a week. 2. Children`s permitted hours of work, range from 5 am to 6 pm on any day 3. Children`s prohibited hours of work, range: after 6 pm to before 5 am on any day 4. However, children aged 16 to 17 years who are not expected to be at school on the following school day may work between 6 pm and 9 pm only under the following conditions: If the work is in a restaurant or a shop with adequate adult supervision; If within this work, the child is under supervision of at least one supervisor of the same sex as the child at work; If the work is of baby sitting or of child minding; If the night working child`s parent or guardian agrees in writing with the child`s employer, and If the employer provides free and safe transport for the working child to be delivered home. 5. In summary, every school going / enrolled child under the age of 18 years, shall be allowed to work within the permitted children`s work hours as shown in the table below: Working hours for the school going / enrolled child Time-Frame During School term During School Holidays Per week Not more than 20 hours Not more than 40 hours Per day Not more than 3 hours in a day followed by another school day Not more than 4 hours in a day followed by a non-school day i.e. Friday or the last day of term 73

90 A Summary of Labour Legislation in Malawi - Kalani Malema Children`s prohibited Work Environment Environment of extreme temperatures i.e. temperature of below 6 degree Celsius and of above 30 degrees Celsius, unless such extremes are as a result of natural climatic conditions where adequate measures are taken to protect the working child with a must condition ensuring the child`s presence in such environment working, for period not exceeding one hour of continuous work. Conditions under-which the child`s prohibited Work (List of hazardous Work) can be performed. 1. When the child`s health and safety is fully protected, 2. When the child has received adequate training in performing the work activities, and 3. When the child is between the age of 16 and 18 years old. The Schedule: List of Prohibited (Hazardous) Work. Name of Sector Agriculture sector Name of Subsector General & Commercial farming Meat, Poultry & Fish List of Prohibited (Hazardous) Work Activities. Work of handling or applying agricultural chemicals, veterinary drugs, pesticides or insecticides in any agricultural undertaking. Work of curing or processing agricultural products where there is exposure to temperatures or working at heights hazardous to safety, health and well being of the children Any work activity involving dangerous machinery, dangerous equipment or dangerous tools Work of bee keeping or any other work involving exposure to bees Work of slaughtering of animals or work in an abattoir or a tannery Work to process meat, poultry or fish processing in a commercial undertaking 74

91 The employment act no. 6 Of 2000 (cap. 55:01) Tobacco sector Work of offshore fishing in deep waters Topping and suckering activities or handling tobacco leaves in the harvesting process Work of handling or grading tobacco leaves in damp conditions or conditions of poor lighting or ventilation And any other work involving tobacco in commercial tobacco estates and farms. Industry sector Tobacco sector Logging / timber Hazardous waste Alcohol manufacturing Radiology sector Electrical sector Machinery operation Work of handling, processing, manufacturing or packing of tobacco products Work of logging, harvesting or processing of timber including cutting timber and saw milling Work of disposing, processing or any work in connection with disposing of hazardous wastes or garbage Work of brewing, manufacturing or selling any liquid which in its final form would contain more than 1 % of alcohol. Any work involving exposure to ionizing radiation such as X-rays Any work involving electrical voltage cables or other power sources in excess of 120 volts Any work involving operation or involving vibrating and heavy duty equipment including: Tractors, Winches, Folk lifts, Front loaders, earth moving equipment, Asphalt mixers, heavy grader, rock drills and riveters or involving any other similar heavy duty equipment 75

92 A Summary of Labour Legislation in Malawi - Kalani Malema Transport sector Construction sector Chemical sector Any work involving welding or soldering using electric or gas welding machines, and Any work involving operating, cleaning or repairing any machinery in motion. Work of driving a motor vehicle Any work of repairing or conducting maintenance of motor vehicles or its parts unless under supervision like those of mechanical student doing practical lessons in technical colleges. Any work in vehicles transporting heavy goods Any work of manufacturing, mixing or of application of tar or asphalt Work involving brick moulding Work of building, demolition or any process associated with engineering or construction, with or without the use of lifts and scaffolding. Any work involving manufacturing, processing, handling, storing, transporting or use of any chemical substances that are toxic, explosive, combustible, flammable, oxidizing, corrosive, irritating, carcinogenic, mutagenic or teratogenic Any work involving exposure to hazardous dust including cement, tobacco dust, cotton dust, bagasse and silica etc. Any work involving exposure to asbestors or products containing asbestos 76

93 The employment act no. 6 Of 2000 (cap. 55:01) Entertainment sector Metal Work sector Entertainment sector Any work involving exposure to any hazardous substance which by virtue of its physical or toxicological properties constitutes a risk to the safety, health or welfare of the child. Any work involving the use of or in proximity of industrial ovens, kilns, furnaces or holder: work of grinding or glazing of metal with or without the use of any power tool or grinding equipment and work of operator of a smelter or furnace or rolling mills that forms and cut metals. Any work in a bar, tarven, pub, shebeen or other establishment of entertainment whose business is to sell alcohol beverages to the general public for consumption on the premises Any work as a personal companion or providing escort services in bars, cocktail lounges, motels, hotels, message houses and other places of recreation or entertainment Any work in a casino or other gambling establishment Any work that involves loitering the streets or around any bar, tavern, pub, shebeen or other establishment of entertainment whose business is to sell alcoholic beverages to the general public for consumption on the premises. 77

94 A Summary of Labour Legislation in Malawi - Kalani Malema Any work posing as a model in an advertisement for alcoholic beverages, tobacco products or condoms or that is connected with advertisement of any of these products. Any work involving exposure to material of a pornographic or adult content or involving the child in any pornographic or adult act, exhibition or production Tourism sector Health sector Miscellaneous (mixed works) Tourism sector Health sector Miscellaneous (mixed works) Any work as a tour guide Any work that constitutes a risk to the safety, health and well-being of the child. Any work in a healthcare or related facility where there will likely be exposure to biological agents or other agents including the following: Viruses causing Hepatitis; Human Immune Virus (HIV); Bacterial causing Tuberculosis; Anesthetics; Anti-neoplastic medications; or Addictive drugs Any work or activity: at a height of more than 2 metres above the ground; Any work or activity involving begging or soliciting for alms Any work or activity involving exposure to a noise of a higher level than a. 85 db (A) for 40 hours per week; or b. 135 db (A) for any period of time. 78

95 The employment act no. 6 Of 2000 (cap. 55:01) Any work of mining, quarrying or excavation, including a. any work underground, b. Underwater, c. In confined spaces: or d. with inadequate ventilation Any work of selling or transporting any hazardous items for sale; or Any work done in a confined space Administration of the Act. The Act shall be administered by the Labour Commissioner and his/ her labour officers in the Ministry of Labour. The Commissioner shall be undertaking such administration work on behalf of the Principal Secretary for Labour and indeed on behalf of the Minister responsible for Labour. A labour officer is defined to include the Labour Commissioner, the Regional Labour officer and the District Labour officer Powers of Labour Officers The Act gives a labour officer powers to: 1. enter any workplace freely and without prior notice at any hour of the day or night; 2. enter by day any premises which he/she reasonably believes to be a workplace; 3. avoid from entering the private home of an employer except with the consent of the employer or under the authority of a warrant issued by a Magistrate; 4. carry out any examination, test or inquiry which he/she considers necessary in order to satisfy himself/herself that the provisions of the Employment Act are being strictly observed and, in particular, can: interrogate, in the presence of witnesses, the employer or the employees on any matter concerning the application of this Act, require the production of any records, books, registers or other documents and to copy such documents, or take ex- 79

96 A Summary of Labour Legislation in Malawi - Kalani Malema tracts from them, enforce the posting of any notices required, and take or remove, for purposes of analysis, samples of materials and substances used or handled having notified the employer or the employer s representative. 5. require from employers and employees information as to the remuneration, hours and conditions of work; 6. inspect any record of accidents or occupational disease kept by the employer as required by the Occupational Safety, Health and Welfare Act; 7. be accompanied by a member of the police force if he/she feels can experience any serious obstruction in the execution duties; and 8. take steps with a view to rectify defects observed in plant layout, installation or working methods which he/she believes constitute a threat to the health or safety of employees Identity Cards and Obstruction of Labour Officers. Every labour officer should be provided with an identity card and should, if required, produce the card while on duty. Any person who: 1. wilfully obstructs a labour officer while at work; 2. fails to comply with any lawful requirement or order of a labour officer given or made before him or her; 3. prevents or attempts to prevent any employee from being examined as required; and 4. fails to produce any book, register or other document upon being asked to do so, will be guilty of an offence. Employee s Right to Lodge Labour Complaint. Any employee who is alleging that his or her employment rights have been violated can bring a complaint to: 1. A labour office which is found in all districts within the country. 2. Industrial Relation Court which is found in Blantyre (Limbe), Lilongwe & Mzuzu. In addition, this court also conducts court circuits in Thyolo, Mulanje and Chikhwawa and that it will be extending such circuit visits to other districts in the near future. 80

97 The employment act no. 6 Of 2000 (cap. 55:01) 3. High Court of Malawi which is found in Blantyre, Zomba, Lilongwe & Mzuzu Assistance to Small Enterprises. A labour officer should take into account the size, capitalization and degree of formality of the operation of enterprises under his/her supervision and should make all efforts to assist smaller and informal enterprises in understanding and complying with provisions of labour laws Conditions of Employment: Contract of Employment other than Contract for Employment Contract of Employment is an entered agreement, whether verbal or written, between an employee and an employer related to work for pay; This contact has three forms namely: 1. For an unspecified period of time, 2. For a specified period of time, and 3. for a specific task. Whereas Contract for Employment is an entered agreement, whether verbal or written, between an independent contractor and an employer. This employment Act does not define a Contractor as an employee. The Contractor, as an employer, can engage into a contract of employment with any person as his /her employee Rights and Responsibilities related to Probationary Period An employer and employee may agree on the duration of a probationary period. Any probationary period, whether agreed between the employer and employee or not, should not exceed a period of 12 months of continuous work. A probationary period that exceeds a period of 12 months automatically becomes a permanent employment relationship between an employer and employee whether agreed or not agreed. During a probationary period, the employer or employee may terminate a contract of employment at any time without notice. 81

98 A Summary of Labour Legislation in Malawi - Kalani Malema Employer s responsibilities related to particulars of employment Every employer has a responsibility not to discriminate his/her prospective employee during recruitment. Every employer who has more than 5 employees must give to each employee a letter with details of employment within a month from the date of employment. The details must include the following: 1. Names of the employee and of the employer. 2. The date when the employee was employed. 3. The date on which the employee will be paid. 4. The type of work to be done by the employee. 5. Normal hours of work. 6. Circumstances than may lead to loss of a job, a part from those provided under the Employment Act. 7. Rules that will guide the handling of cases of indiscipline/misconduct Termination of Contract Every employee s employment will not be terminated by the employer unless there is valid reason connected with the operational requirements of the enterprise. Every employee has the right not to have his/her services terminated before he/she is provided with an opportunity to defend himself/ herself against the allegations made, unless the employer cannot reasonably be expected to provide the opportunity. Every employee has the right not to have his or her employment terminated because of: 1. his or her sex, race, colour, language, religion, political or other opinion, nationality, ethnic, or social origin, disability, property, birth, marital or other status, or family responsibilities. 2. removing or trying to remove himself/herself from a work situation which he/she reasonably believes poses a serious danger to life or health. 3. joining a trade union. 4. participating in a legal strike. 5. being temporary absent from work due to illness; 6. lodging a complaint against the employer concerning alleged vio- 82

99 The employment act no. 6 Of 2000 (cap. 55:01) lations of laws and regulations. Any employee whose employment has been terminated, or whose contract has come to an end, has the right to receive his or her wages and other remuneration due to him/her within 7 days from the date of termination or from the completion date of his or her employment Notice Service Period or Notice Pay If an employee is under a contract of employment for a specified period of time, the contract can be terminated by the employee or employer by giving a minimum notice period of 14 days. If an employee is under a contract of employment for an unspecified period of time, the contract can be terminated by the employee or employer by giving a minimum period of notice in writing as indicated in the table below: Type of contract For a contract that pays wages at a monthly rate For a contract that pays wages every two weeks, and if the employee has been employed for less than 5 years For a contract that pays wages every two weeks, and if the employee has been employed continuously for at least 5 years For a contract that pays wages every week, and if the employee has been employed for less than 2 years For a contract that pays wages every week, and if the employee has been employed continuously for not less than 2 years, but not more than 5 years Minimum notice period One month s notice Two weeks notice One month s notice One week s notice Two weeks notice 83

100 A Summary of Labour Legislation in Malawi - Kalani Malema For a contract that pays wages every week, and if the employee has been employed continuously for at least 5 years For a contract that pays wages every day or every hour, and if the employee has employed for less than 6 months For a contract that pays wages every day or every hour, and if the employee has been continuously employed for a period of not less than 6 months, but not more than 2 years For a contract that pays wages every day or every hour, and if the employee has been continuously employed for a period of not less than 2 years but less than 5 years For a contract that pays wages every day or every hour, and if the employee has been continuously employed for a period of at least 5 years One month s notice One day s notice One week s notice Two week s notice One month s notice Where an employer or an employee cannot give notice, either party shall pay the other party an amount equal to the salary that the employee would have earned during the period of notice Certificate of Termination On termination of employment, an employee has the right to request from his or her employer a certificate indicating: 1. the name and address of employer; 2. the type of the employer`s business; 3. the length of the employee`s continuous employment with the employer; 4. the type of work which the employee was doing; 5. the wages and other amounts of money payable at the date of the termination of contract; Unless specifically requested by the employee, the certificate shall not contain: 1. the reason for the termination of employment, and 84

101 The employment act no. 6 Of 2000 (cap. 55:01) 2. any evaluation of the employee s work Transfer of Contracts Every employee has the right not to have his or her contract transferred from one employer to another without his or her agreement. However, where the company or business has been sold, or transferred to another employer, all contracts of employment shall automatically be transferred to the new owners, company or business. When any such transfer has been taken place, the: 1. the new owners, company or business shall take over all the obligations of the old company with respect to any of the rights of the employees; 2. there will be no break in employment, such that the contract of employment will be taken to have continued from the old to the new employer Employment Rights in respect of Insolvent Employer The insolvency or winding-up of the employer s business will cause the contract of employment between employer and employee to terminate. Either party to the employment contract in case of insolvency has the right to terminate the employment in one month time from the date of insolvency or winding-up of the employer s business. This right to terminate will not be applicable in cases where the insolvency or winding-up of the employer s business has resulted into being transferred to continue operating. Every employee of the insolvent employer will have his/her claims treated as first priority over all other claims from the same insolvent employer by creditors if such employee s claims involve the following amounts: 1. wages, overtime pay, commissions and other forms of remuneration relating to employee s work performed during 12 weeks preceding the date of the declaration of employer s insolvency or winding-up; 2. holiday or leave pay due out of employee s work performed during 2 years preceding the date of the declaration of insolvency or winding-up; 85

102 A Summary of Labour Legislation in Malawi - Kalani Malema 3. amounts due to employee in respect of all employee s wage arrears accumulated during 3 months preceding the date of the declaration of insolvency or winding-up; and 4. severance pay/allowance, monetary compensation for unfair dismissal and other payments due to an employee upon termination of their employment The Employment (Amendment) Act No. 27 of This amendment Act made some changes to the original (Principal) Employment Act of The changes include: 1. amendment of section 35 of the Employment Act, the severance allowance section, 2. insertion of a new section 35A into the Employment Act, 3. replacement or removal of section 53(2) of the Employment Act which was about payments of pension benefits, 4. transitional provisions on employee s severance due entitlement in relation to provisions on the same from the Pension Act No. 21 of 2011, and 5. replacement of first schedule to the Principal Act. First Schedule contains formula for calculating severance allowance. An employee shall be paid severance allowance on the termination of his or her contract of employment as a result of only four circumstances as follows: 1. redundancy or retrenchment, 2. economic difficulties for the employer, 3. due to technical, structural or operational requirements of the employer, and 4. on the unfair dismissal of an employee by the employer. These four circumstances for severance allowance replaced the two circumstances for severance allowance before the amendment which were: 1. mutual agreement between employer and employee, and 2. unilateral termination decision by employer himself or herself. Severance allowance will be calculated as shown in the table below. 86

103 The employment act no. 6 Of 2000 (cap. 55:01) Table: Severance Allowance Calculation Formula Length of Service From 1 year up to 5 years. From 6 th year up to 10 years. From 11 th year and above. Severance Allowance 2 weeks wages for each completed year of continuous service up to and including the 5 th year. 2 weeks wages for each completed year of continuous service for the first 5 years, plus 3 weeks wages for each completed year of service from the 6 th year up to and including the 10 th year. 2 weeks wages for each completed year of continuous service for the first 5 years, plus 3 weeks wages for each completed year of service from the 6 th year up to and including the 10 th year, plus 4 weeks wages for each completed year of service from 11 th year onwards. In this table, wages refers to the current wage of the employee. For the purpose of calculating severance allowance, the term: wage means an inclusion of the following, if part of the employee s earnings: 1. employee s basic pay, 2. employee s housing or accommodation allowance received, 3. employee s car allowance of a car s provision, 4. employee s transport allowance used to and from work, 5. plus any other payments received by the employee as part of his/ her work earnings from the employer apart from those specified exclusions below. The following will be excluded as part of employee s wages for the purpose of calculating severance allowance unless they are expressly provided (covered) in an employer-employee signed contract of employment: 87

104 A Summary of Labour Legislation in Malawi - Kalani Malema 1. any payment or allowance to the employee to enable him /her to work as part of his/her working materials/equipments, 2. employee s relocation allowance, 3. employee s gifts from his/her employer, 4. employee s dividends (cash share) from his/her employer or organization as a result of the employee being a shareholder, 5. employer s contributions towards the employee s funeral help, death benefit schemes, medical aid, pension fund or any other similar scheme, 6. employee s entertainment allowance, and 7. employee s education or schooling allowance. Not every employee is entitled to severance allowance and the following employees are not entitled to severance allowance: 1. Any employee who was on contract for a specified period or for a specified task that has been terminated at its end or has come to an end of such a period or task. 2. Any employee who is serving on a probationary period which by law must be less than 1 year (12 months) of employee s continuous service. 3. Any employee who is fairly dismissed for reasons related to his or her conduct. 4. Any employer who unreasonably refuses to accept an offer of re-employment by the employer at the same place of work, and under not less favourable terms than he/she was employed immediately before his or her termination of services. 5. Any employee who is employed by a partnership, and after the partnership has been dissolved, he/she immediately enters into employment with one or more of the partners. 6. Any employee who unreasonably refuses to accept an offer of employment from any partner after the dissolution of a partnership, even though he/she is being offered a contract that is not even less favourable to that he/she had before the partnership dissolved. 7. Any employee who is employed by a personal employer who dies, and he/she is immediately employed by the personal representative, widow, or widower of the deceased employer. The gratuity provision. An employer who is exempted from providing pension benefits to employees, shall pay his/her employee, gratuity to 88

105 The employment act no. 6 Of 2000 (cap. 55:01) be calculated using the gratuity formula provided below: 1. on retirement time, 2. on termination of employment, or 3. on death of the employee. An employee shall qualify for the payment of gratuity if he/she has been employed by the same employer for a minimum continuous period of 3 months in any given year. The term: gratuity in this case means the contractual gratuity as stipulated in an employment contract entered between the employer and employee and not that gratuity that is payable in lump sum as part of a retired employee s total pension following the employee s mandatory retirement period. This gratuity will be calculated to be equal to 5% of the monthly salary of the employee for each completed month of employee s service. It will be calculated based on the final month s salary received by the employee and then multiplied by the total number of months served Hours of Work and Leave Hours of work The maximum working hours a day for those that work 5 days a week is 12 hours. The maximum working hours a day for those that work 6 days a week is 8 hours; Employees who work for 6 consecutive days in a week are entitled to a 24 consecutive hour period (1 full day) of rest after the 6 days of work. This means that every employed worker should be given at least one working day of rest in each week of 7 days. Thus an employee should work for a maximum of six days during the week. Note that the declared weekly rest day should be the day to be agreed upon between the employer and the employee. It could be Sunday, or Saturday, or Wednesday or any other day of the week. If an employee works for more than the maximum hours, he/she is entitled to overtime pay. However these overtime provisions do not apply to employees in management positions in commercial or retail businesses. 89

106 A Summary of Labour Legislation in Malawi - Kalani Malema Forms of Overtime and their Payment Rates There are three classes of overtime as follows: 1. Ordinary Overtime. This is time worked by an employee on a working day but in excess of the hours normally worked. For instance, the 9 th hour worked per day should be treated as overtime worked hour. A worker should be paid at the hourly rate of not less than 1 his/her normal hourly wage rate for each hour of ordinary overtime worked hours. 2. Day off Overtime. This is time worked by an employee on a day on which the worker would otherwise be off duty. A worker should be paid at the hourly rate of not less than twice his/her wage for each hour of day-off overtime worked hours. 3. Holiday Overtime. This is time worked by an employee on a public holiday. A worker should be paid at an hourly rate of not less than twice his/her normal hourly wage rate for each hour of holiday overtime. Note that the above overtime rates apply to every employee except the Guard who when works in excess of forty-eight hours should have his/her overtime hour paid at the rate of 50% of the Guard s basic pay. Box 9: Mandatory/Gazetted Public Holidays in Malawi Public Holidays in Malawi There are eleven gazetted public holidays in a year that should be rested upon by every employee except the one performing overtime duties. Holidays which are just announced may not be recognized as holidays for purposes of employment unless it is announced by Government to be so and/or if you are advised accordingly. Such eleven gazetted holidays in the Public Holidays Schedule are as follows: New Year s Day John Chilembwe`s Martyr s Day 1 st January, Day 15 th January, 3 rd March, 90

107 The employment act no. 6 Of 2000 (cap. 55:01) Good Friday Easter Monday Labour Day Kamuzu Day Freedom Day Republic (Indep.) Day Eid al Fitri Mother s Day Christmas Day Boxing Day date falling in April, date falling in April, 1 st May, 14 th May, 14 th June (Cancelled) 6 th July, date in August or September 15 th October, 25 th December and, 26 th December (Cancelled) Source: Public Holidays Act (Cap. 18:05) of Laws of Malawi Public Holidays (Replacement of Schedule) Order, 2007 gazetted as Government Notice No. 41 dated 20 th December, Provided Leave Forms Annual leave provisions are specified as follows: 1. Every employee who works for 6 days in week is entitled to leave of not less than 18 days a year. 2. Every employee who works for 5 days a week is entitled to leave of not less than 15 days a year. 3. Every employee whose period of annual leave overlaps with any public holiday has the right to have his or her leave extended by one working day for each public holiday. 4. An employee is required to take his or her leave within 6 months of the entitlement to leave falling due. 5. Leave may be postponed or accumulated if both the employer and the employee agree. 6. On termination of employment, every employee has the right to receive payment in respect of any leave which he/she was entitled to take but was not taken before the date of the of employment termination. 7. Every employee should be paid while on annual leave. 8. No employer can force an employee to take annual leave instead of sick leave, maternity leave, or notice of termination of employment. 91

108 A Summary of Labour Legislation in Malawi - Kalani Malema Right to sick leave. Every employee is entitled to sick leave having worked continuously for 12 months for the same employer. In respect to annual leave, an employee is entitled/required to: 1. at least 4 weeks sick leave on full pay during each year; 2. at least 8 weeks for sick leave on half pay during each year; and 3. produce to his/her employer a certificate from a doctor stating the employee`s illness as valid evidence for asking for sick leave. A suffering employee for more than 12 months continuously shall either be terminated on medical grounds or may remain in the employment without pay upon the discretion by the employer. Right to maternity leave. Maternity leave provisions are as follows: 1. Every female employee shall be entitled to at least 8 weeks (2 months) maternity leave on full pay within a period of every three years. This implies that a female employee who falls pregnant for the second time but within a period of 3 years can be granted maternity leave on no pay or with pay based on her employer s discretion. 2. Every female employee on maternity leave has the right to continue enjoying all her normal employment benefits. 3. Every female employee who is certified by a registered medical practitioner to have an illness arising out of pregnancy or confinement that affects the employee and/or her child shall be entitled to additional leave days as the employer may decide. 4. Every female employee who was on maternity leave has the right to return to the same job, with the same benefits and entitlement, once her leave expires. 5. However, if her job has ceased to exist, or if the employee is not capable of performing her old job, the employee has the right to be placed in alternative job by the employer. 6. If no alternative job can be found, or if the employee unreasonably refuses an alternative job offer, the employee has the right to be given notice of the termination of her employment. 7. Every female employee whose employment is terminated because she is pregnant, or for any reason connected with the pregnancy has the right to take legal action against the employer. 8. Any termination of employment on account of an employee`s pregnancy is a punishable offence that attracts a fine or imprison- 92

109 The employment act no. 6 Of 2000 (cap. 55:01) ment of up to 5 years imposed upon the employer by competent courts of law, and 9. A female employee should have her maternity leave enjoyed whether she is a temporary or permanent employee Continuous and Seasonal Employment Continuous employment begins on the first day of which an employee begins to work for an employer and continues up to the last work day even if it is a date of termination of employment. It is implied, unless the contrary is shown, that the employment of an employee with an employer is continuous whether or not the employee remains in the same job. An employee s continuous employment shall not be treated as interrupted if the employee is absent from work for a period less than 6 months: 1. due to taking annual, maternity, sick or any other legally provided leave; 2. due to his/her suspension, with or without pay; 3. due to the termination of his/her employment prior to being reinstated or re-engaged; 4. due to having been temporarily laid-off by the employer; 5. due to employee s action in pursuance of a strike in which he/she participated; and 6. due to a lockout; or with the leave of his/her employer (leave of absence). However, any period during which an employee is absent from work beyond 6 months because of his/her participation in a strike shall not interrupt the employee s work continuity but shall not count for the purposes of calculating the length of employee s continuous employment. Seasonal Employment. In situations where an employer is engaged in an undertaking in which it is customary routine to employ some employees only at certain seasons of the year and an employee is employed for successive seasons, the employee shall be deemed to have been continuously employed for the aggregate of all the time he/she has actually performed work for the same employer for continuous seasons. 93

110 A Summary of Labour Legislation in Malawi - Kalani Malema 5.9. Employment Wages Rights Related to Wage Payments Every employee has the right to be paid his/her wages in money, either cash or by cheque. Any employee whose wages are fixed on a monthly or yearly basis has the right to be paid once a month. Any employee whose wages are fixed by the hour, day or week; or calculated solely on a piece work or task-work basis, has the right to be paid at least once a week, or once every two weeks. Every employee has the right to instruct his/her employer in writing to pay his /her wages to any person specified by him/her. Every employee has the right to agree to be paid his/her wages by cheque. Every employee has the right to receive with each payment of wages an accurate statement (pay slip) from the employer showing: 1. Gross wages due at the end of the pay period. 2. Every deduction from his wages, and the purpose of such deduction. 3. Net/total wages payable at the end of the period. An employee has the right to have her/his pay records and deductions accurately kept by his or her employer. Every employee has the right not to be deprived of his/her pay by the employer. Every employee has the right to use the wages as he/she wishes without interference from the employer Rights Related to Wage Deductions An employer is required only to make the following deductions from an employee`s wages: 1. Those amounts authorized by the employee in writing; 2. The employees contribution to a compulsory social security scheme i.e. pension fund; 3. An amount required to be deducted in accordance with the law or a court order; 4. An amount of period of absence from duty without permission; 5. An amount as compensation for property damaged by the employee; 94

111 The employment act no. 6 Of 2000 (cap. 55:01) Provided that such deductions (total) must not be more than half of the employee`s wages Setting of Minimum Wages The Minister responsible for Labour, in consultation with organizations of workers and of employers relevant to the group of wage earners, can fix the minimum wages of any group of wage earners as to the appropriate level of minimum wage to be prescribed. The set/fixed minimum wage shall be published in the Gazette of wages order prescribing the minimum wages to be paid to the group of wage earners to which such wages order applies. In prescribing minimum wages, the Minister shall consider the following as much as possible: 1. the needs of workers and their families, 2. the general level of wages, 3. the cost of living, 4. the cost of social security benefits, 5. the relative living standards of other social groups; 6. economic factors such as the requirements of economic development, the levels of productivity and the wage effects on employment. The Minister through such consultations will be reconsidering the levels of minimum wages at least once every three years. However, the Minister through consultations with employees and employers organizations can at any time convenient change/modify the procedure for setting wages. The set minimum wage rate shall not be subjected to downward abatement but to upward abatement provided the employer and employee agree to do so. Any employer who was paying his/her employees wages greater than the set minimum wage rate before the commencement of such set minimum wage rate shall not be allowed to reduce the wages to the set minimum wage rate following its coming into effect/operation. Any employer who pays wages lower than the set minimum wage rate shall have committed a punishable offence that attracts a court fine and 10 years imprisonment. Currently the revised minimum wage rate for both rural and urban 95

112 A Summary of Labour Legislation in Malawi - Kalani Malema employees whether in the districts, townships, municipalities and cities, is Mk per work day with a housing allowance inclusive. Box 10: Current Government Minimum Wage Rate The new current revised minimum wage rate for both rural and urban employees, be it in the Districts, Townships, Municipalities and Cities, is Mk per work day with a housing allowance inclusive. This came into effect on 1 st October, 2015, as published in the Malawi Government Gazette supplement of 4 th September, 2015 as Government Notice No. 32. Implication to this is that all those workers employed and working in Malawi should be paid not less than Mk per work day. Furthermore, it meant that some employers who had already planned to pay their workers for the month of October, 2015 and onward at rates lower than that of minimum provision stated above had to, with immediate effect, increase their workers salaries / wages to or above the new said minimum wage rate in order to comply with such revised minimum wage law. This gazetted government notice replaced the earlier government notice on the same subject that had effected from 1 st January, 2014 being published in the Malawi Government Gazette supplement of 13 th December, 2013 as Government Notice No. 57 whose constituted minimum wage rate was Mk per work day including housing allowance. Note that this wage rate is, however, long overdue and thus subject to be revised upward to Mk or Mk1, per work day depending on agreement between relevant employment social partners, if not, replaced by sectoral minimum wage rates as agreed by social partners in

113 The employment act no. 6 Of 2000 (cap. 55:01) Discipline and Dismissal Disciplinary Actions other than Dismissal. Instead of dismissing an employee, an employer is entitled to take a disciplinary action against the employee when it is reasonable to do so. Disciplinary actions include: 1. A written warning, 2. Suspension, or 3. Demotion. Disciplinary action must take into account the employee`s length of service, previous cases of misconduct, and family circumstances among other things Forms of Dismissals Unfair Dismissal Every employer is required to give reasons for dismissing an employee from employment. Where the employer fails to provide a reason for such dismissal, the dismissal shall be unfair. Any employee who is dismissed for any reason connected with her pregnancy, or during maternity leave or for any reason (s) connected with discriminatory factors stated in this Employment Act shall be deemed to have been unfairly dismissed. If the court finds that an employee has been unfairly dismissed, it may make any of the following orders: 1. that the employer should take back the employee to his or her old job; 2. that the employer should give the employee another job, comparable to that which he/she was doing before he/she got dismissed; 3. that the employer should compensate the employee. The amount of compensation shall depend on the Court s assessment of the case, but as a minimum, it shall also depend on the employee`s length of service. Where an employer does not comply with a court s order to employ back the employee, the employee shall be entitled to a special award of an amount equivalent to 12 weeks wages. This is over and above any compensation he/she is entitled receive. 97

114 A Summary of Labour Legislation in Malawi - Kalani Malema Summary Dismissal An employer is entitled to dismiss any employee summarily (without notice or with a notice of less period than that to which the employee would otherwise be entitled) for any of the following reasons: 1. Serious misconduct inconsistent with the fulfillment of his/her employment, that it would be unreasonable to require the employer to continue the employment with such employee in the employment relationship. 2. Due to negligence of duties by employee. 3. Due to fact that the employee was recruited because he/she lied about possessing some skills or due to poor performance by the employee as a result of lacking required work skills. 4. Due to disobedience by employee to lawful orders or work assignments given by the employer. 5. Due to being absent from work without the permission of an employer, and without reasonable excuse Constructive Dismissal An employee is entitled to terminate a contract of employment without notice, or with less notice, where the conduct of the employer has made it unreasonable/difficult to expect the employee to continue working for the employer. Such employee can claim that he/she has been unfairly dismissed by the employer Redundancy and/or Retrenchment The Employment Act does not provide for Redundancy and Retrenchment. These two words in context of employment have different meanings although they can be used interchangeably. Redundancy means job redundancy where a particular job ceases to exist but the incumbent employee(s) are assigned with alternative work within the organization or worker redundancy where the employees lose their employment i.e. employee is removed from the position/ post without necessarily abolishing the employee s position. Redundancy could happen because of economical or technological reasons resulting into the employer failing to sustain or maintain the position s wage bills and benefits and to tolerate resource wastage respec- 98

115 The employment act no. 6 Of 2000 (cap. 55:01) tively. Whereas Retrenchment means removing the employee from the position/post which has not been abolished probably because of technological reasons resulting into retention of just a few post employees enough to undertake the work probably with computer aid which was being managed by many employees before. This means that retrenchment is the same as worker redundancy hence can be described as a subset of redundancy. However their interchangeability in their usage comes in because in most cases during workforce resizing or restructuring, both the position and the incumbent employee(s) are usually removed as a result. For instance, one labour assistant out of three labour assistants holding three labour assistant posts can be declared terminated (retrenched) yet the post of labour assistant itself within the office s structural establishment still exists but with only 2 post employees instead of the original 3 post employees. On the other hand, if three labour assistants (employees) as well as their three posts are terminated (removed/abolished) through redundancy process then retrenchment cannot be interchangeably used with redundancy in such a case. Otherwise one or all three labour assistants can be removed from work (retrenchment) without abolishing the labour assistant position from the office establishment or the labour assistant position can be abolished with all the three incumbent labour assistants relocated with alternative jobs within the organization (this is job redundancy). This clearly indicates that retrenchment and/or worker redundancy is more serious or rather dangerous as compared to job redundancy because the possibility of worker relocation into other positions during retrenchment/worker redundancy process does not arise. Both redundancy and/or retrenchment provisions are not provided for in the Employment Act. However procedures for redundancy and/or retrenchment are laid down in the ILO Convention No. 158 of 1982, the Termination of Employment convention which Malawi ratified in Article 14 of this ILO convention provides for the procedures to be followed by the employer when contemplating to terminate employees for reasons of an economic, technological, structural or similar nature. The procedural steps to be followed are: 1. Every employer shall first notify, in accordance with national law 99

116 A Summary of Labour Legislation in Malawi - Kalani Malema and practice or with common law practice, the competent authority of his/her intention to retrench or to carry redundancy as early as possible. For instance, the notification must be done within a minimum period of time before carrying out the terminations, such period that may be specified by national laws or regulations or common law. 2. Every employer shall be required to give relevant information, including a written statement of the reasons for the terminations. 3. Every shall specify the number and categories of workers likely to be affected, and 4. the period over which the terminations are intended to be carried out. Thus in accordance with section 211 of the Malawi Republican Constitution, these laid down redundancy/retrenchment procedures are part and parcel of the Malawian labour laws and hence must be applied accordingly as if they were also contained in this Employment Act or in any other Malawi labour legislative Act. Box 11: International Labour Organisation Conventions Relevant to WCA International Labour Conventions ILO Convention No. 12 of 1921: Workmen s Compensation (Agriculture). The International Labour Organisation adopted the Workmen s Compensation (Agriculture) Convention on 12 th November, This is a convention that provides for the protection of agricultural workers against accident. It came into force on 26 th February, 1923 and was revised in Malawi ratified this convention in ILO Convention No. 19 of 1925: Equality of Treatment (Accident Compensation). 100

117 The employment act no. 6 Of 2000 (cap. 55:01) The International Labour Organisation adopted the Equality of Treatment (Accident Compensation) Convention on 5 th June, This is a convention that provides for the equality of treatment for national and foreign workers as regards workmen s compensation for accidents. It came into force on 8 th September, Malawi ratified this convention in The effect for Malawi s ratification of these two ILO conventions is that provisions contained in such conventions are part and parcel of Malawian labour laws. In this regard, Malawi domesticated some of these conventions provisions in the Workers Compensation Act (WCA), of 2000 which is a law to provide for compensation for injuries suffered or diseases contracted by Workers in the course of their employment or for death resulting from such injuries or diseases; to provide for the establishment and administration of a Workers Compensation Fund. 101

118 6 Workers Compensation Act No. 7 of 2000 (Cap. 55:03) This Act repealed and replaced Workers Compensation Act of Aim of the Act to provide for compensation for injuries suffered or diseases contracted or for deaths resulting from such injuries or diseases in the course of employment, to provide for the establishment and administration of workers compensation fund Application of the Act The Act applies to every person who is a worker of someone (the employer). This means that all workers employed by private employers as well as those employed by the Government as employer are equally covered except in the case of persons employed by Government in the armed forces of Malawi excluding those in civilian capacity. The word worker means any person who has entered into a contract of service/employment or into apprenticeship with an employer in any employment. However, the Act does not apply to the following categories of workers: 1. casual worker whose work is not in the course of employer s business, 2. an outworker who is a person given articles or materials to make 102

119 Workers Compensation Act No. 7 of 2000 (Cap. 55:03) up or to sale under the control of the giver, 3. a tributer who is a person permitted to win minerals and to get a proportion of them in turn, 4. member of employer s family living together with the employer in the same house of employer, 5. a member of the Malawi armed forces except those in a civilian capacity Meanings of some key terms used in the Act Earnings is defined to include: 1. wages paid to a worker by the employer, 2. the value of any food, fuel or quarters supplied to the worker by the employer, and 3. any overtime payments or other special remuneration for work done, whether by way of bonus or otherwise, if they are fixed payments or payments for work habitually performed. However, earnings do not include: 1. remuneration for intermittent overtime, 2. casual payments of a non-recurrent nature, 3. any ex-gratia payment whether given by the Employer or other person, 4. the value of a travelling allowance, 5. the value of any travelling concession, 6. a contribution paid by the employer of a worker towards any pension or provident fund, and 7. a sum paid to a worker to cover any special expenses entailed on him by the nature of his/her employment Eligibility for Compensation An employer shall be liable to pay compensation if an injury is caused to a worker arising out of and in the course of his/her employment using compensation procedures provided in this Act in either of the following circumstances: 1. where the worker s workplace and/or place of accident are within the country Malawi, 2. where the usual place of employment of a worker is in Malawi and the worker suffers an injury while he/she is temporarily employed 103

120 A Summary of Labour Legislation in Malawi - Kalani Malema outside Malawi by the same employer, or 3. where the usual place of employment of a worker is outside Malawi, and he/she suffers injury while he/she is temporarily employed inside Malawi he/she shall be entitled to compensation from the employer in the same manner as if he/she were ordinarily employed in Malawi. 4. where in the circumstances of 2 and 3 above, the worker is also entitled to compensation under the law of another country and if the worker registers to claim compensation under this Malawi Workers Compensation Act, the Commissioner shall: before paying any compensation, make due inquiries to satisfy himself/herself that the worker has not already claimed compensation under the law of that other country; and where compensation is paid to the worker under this Malawi Workers Compensation Act, notify that fact to the person liable to pay compensation to the worker under the law of that other country. In all the above circumstances, the employer is liable to pay compensation to his/her worker except to the one not eligible due to circumstances where: 1. the worker s injury does incapacitate the worker for a period of less than 7 days from earning full wages or salary at the work he/ she was employed, 2. the incapacity or death results from worker s deliberate self-injury, 3. the injury to the worker is proved to have been caused due to serious and wilful misconduct of a worker, 4. the worker knowingly presented a false representation in writing to the employer that he/she was not suffering, or had not previously suffered from that similar injury which is the subject for the worker s current compensation claim. The worker s injury should be the one incurred by a worker: 1. while he/she is travelling to or from his/her place of employment with the express or implied permission of the employer using: a means of transport provided by the employer for carrying workers, or a means of transport which is under control of the employer or 104

121 Workers Compensation Act No. 7 of 2000 (Cap. 55:03) accepted by the employer to be used by a worker. 1. within or around the employer s business premises while the worker was taking steps in an actual or perceived/supposed emergency, and 2. resulting into the worker s death or serious incapacity even if the worker had contravened statutory laws or regulations in the process Compensation Amounts for Injury caused All compensation amounts will be paid out to injured workers or their certified beneficiaries by the Workers Compensation Commissioner in the Ministry of Labour on behalf of the Employers. There are two formulas used to calculate compensation amounts. One formula is for compensation in non fatal cases and the other formula is for compensation in fatal cases. For a non fatal case, which is compensation where permanent incapacity results from injury and not death to a worker, the amount of compensation shall be a sum equal to 54 times the monthly earnings at the time of the injury times the incapacitation percentage. Where the permanent total incapacity is of such a nature that the injured worker must have the constant help of another person, compensation additional to the already paid amount shall be payable out of the workers compensation fund on approval by the Board. For fatal cases, the amount of compensation shall be a sum equal to 42 times deceased worker s monthly earnings at the time of the injury times the incapacitation percentage which is 100 percentage. In cases where compensation for the same injury, that has latter on resulted into death of the worker, has already been paid for permanent total or partial incapacity, such already paid compensation money shall be deducted from the sum payable as compensation for the death of the worker. However the estate (money) of the deceased worker shall not be liable to refund any sum that might have been paid in excess of the amount payable as compensation upon worker s death before the worker s death as compensation for permanent total or partial incapacity. If the deceased worker leaves no dependants, the reasonable expens- 105

122 A Summary of Labour Legislation in Malawi - Kalani Malema es of medical attendance on the deceased worker and the burial of his/her body shall be paid by the employer. And such expenses due to any person paid by the employer shall be recoverable from the workers compensation fund. For compensation in case of permanent partial incapacity and in case of an injury specified in the Act first schedule, amount of compensation shall be such percentage of the compensation which would have been payable in the case of permanent total incapacity as is specified in that schedule as being the percentage caused by that injury, whereas In case of an injury not specified in the Act first schedule, amount of compensation shall be such percentage of the compensation which would have been payable in the case of permanent total in capacity as is proportionate to the loss of earning capacity permanently caused by the injury in any employment which the employee was capable of undertaking at the time of his/her injury. The Act contains the First Schedule which is a schedule of percentage of incapacities to serve as reference for the medical practitioners for their work of assessing and awarding the degree (percentage) of incapacitation on the injured worker. FIRST SCHEDULE SCHEDULE OF PERCENTAGE OF INCAPACITIES Injury Percentage of incapacity Loss of two limbs 100 Loss of both hands or of all fingers and thumbs 100 Loss of both feet 100 Total loss of sight 100 Total paralysis 100 Injuries resulting in being permanently bed ridden 100 Any other injury causing permanent total disablement 100 Loss of arm at shoulder 70 Loss of arm between elbow and shoulder 60 Loss of arm at elbow

123 Workers Compensation Act No. 7 of 2000 (Cap. 55:03) Loss of arm between wrist and elbow 50 Loss of hand at wrist 50 Loss of four fingers and thumb on one hand 50 Loss of four fingers 35 Loss of thumb Both phalanges 35 One phalange 10 Loss of index finger- Three phalanges 10 Two phalanges 8 One phalange 4 Loss of middle finger- Three phalanges 6 Two phalanges 4 One phalange 2 Loss of ring finger- Three phalanges 5 Two phalanges 4 One phalange 2 Loss of little finger- Three phalanges 4 Two phalanges 3 One phalange 2 Loss of metacarpals First or second (additional) 3 Third, fourth or fifth (additional) 2 Loss of leg- At or above knee 70 Below knee 60 Loss of foot 40 Loss of toes- All of one foot 15 Great, both phalanges 5 Great, one phalange 2 Other than great, if more than one toe lost each 1 107

124 A Summary of Labour Legislation in Malawi - Kalani Malema Loss of sight of one eye 30 Loss of hearing in one ear 10 Total loss of hearing 50 Scars from injuries or burns which result in disfigurement shall be treated as resulting in from 0 to 50 percent permanent incapacity, according to their size and location. Total permanent loss of the use of a member (part) shall be treated as loss of such member. The percentage of incapacity for ankylosis of any joint shall be reckoned from 25 to 100 per cent of the incapacity for loss of the part at that joint, according to whether the joint is ankylosis in a favourable position or unfavourable position. Where there is a loss of two or more parts of the hand, the percentage of incapacity shall not be more than for the loss of the whole hand. Injuries which result in permanent incapacity but which are not included in this schedule shall be assessed in relation to the percentage of incapacity specified in this Schedule, wherever possible. LAB /4M/3.93 Box 12: Illustrated Examples on Calculation of Workers Compensation Payments Calculations of Workers Compensations For non fatal cases, the amount of compensation shall be a sum equal to 54 times the monthly earnings at the time of the injury times the incapacitation percentage. An example to illustrate this non fatal case compensation formula would be as follows: 1. Suppose Mr Harold, injured employee of Raiply Company gets average monthly earnings of Mk25, at the time of injury; 2. Harold is assessed 20 % permanent total or partial incapacity. 3. Harold will therefore get Mk270, compensation according to the formula of: Average monthly earnings x 54 x incapacitation percentage. 108

125 Workers Compensation Act No. 7 of 2000 (Cap. 55:03) 4. And that he will get Mk1, 350, according to this same formula if his permanent total incapacitation percentage is 100 % as a result of his injury involving a circumstance that attracts 100 % degree of incapacitation according to the first schedule of the Act. In cases where the permanent total or partial incapacity involving Harold is of such a nature that Harold shall have the constant help of another person, compensation additional to the already paid amount of Mk 270, shall be payable out of the workers compensation fund on approval by the Board. For fatal cases, the amount of compensation shall be a sum equal to 42 times deceased worker s monthly earnings at the time of the injury or death. In cases where compensation for the same injury, that later resulted into death, has already been paid for the worker s permanent total or partial incapacity, such an already paid compensation money shall be deducted from the sum payable as compensation upon the death of the worker. An example to illustrate this fatal case compensation formula using Harold s employment information above would be as follows: 5. Supposing Harold, while getting average monthly earnings of Mk25, at the time of injury, died on the spot. 6. Then Harold s incapacitation percentage is automatically 100 %. 7. Thus compensation amount for late Harold is equal to Mk1, 050, according to the formula of: Average monthly earnings x 42 x incapacitation percentage. 8. Furthermore, suppose Harold who was getting average monthly earnings of Mk25, at the time of injury, did not die on spot and thus got his non fatal compensation amount of Mk270, but thereafter dies out of a cause as a result of the sustained employment injury that had led to his earlier paid compensation. What would be Harold s next final compensation amount equal to? 9. In this case, Harold s deceased estate (money) according to the above calculations becomes Mk780, which is (Mk25, x 42 x. 100 %) less (Mk25, x 54 x 20 %) already paid which is Mk1, 109

126 A Summary of Labour Legislation in Malawi - Kalani Malema 050, Mk270, = Mk780, This means it is a difference in the two calculated compensation amounts that is payable. 10. Hence certified dependents of Harold will be paid a difference of Mk780, as final compensation. 11. However assuming Harold s earlier paid compensation was Mk1, 350, (as compensation for his permanent total incapacity being assessed at 100 %) more than Mk1, 050, calculated as fatal compensation amount, then the law restricts that the negative difference of Mk300, must not be refunded back to the employer or to the compensation fund. For compensation in case of permanent partial incapacity and in case of an injury specified in the Act s first schedule, the amount of compensation shall be such percentage of the compensation which would have been payable in the case of permanent total incapacity as is specified in that schedule as being the percentage caused by that injury. Whereas in case of an injury not specified in the Act s first schedule, the amount of compensation shall be such percentage of the compensation which would have been payable in the case of permanent total in capacity as is proportionate to the loss of earning capacity permanently caused by the injury in any employment which the employee was capable of undertaking at the time of his/her injury. For instance, using the previous examples where Harold got Mk270, as compensation for his permanent total incapacity. Supposing Harold s injury resulted into permanent partial incapacity (a) with a loss of arm between elbow and shoulder (b) as a result of an injury not defined in the first schedule which has led to Harold s reduction of earnings to 60 % from 80 %. How much would Harold get as compensation respectively? For (a) Harold would get Mk162, (that is, 60 % of Mk270, 000) and for (b) he would get Mk67, (that is, ( of Mk270,

127 Workers Compensation Act No. 7 of 2000 (Cap. 55:03) Imagine there are two injured workers A & B whose monthly earnings are equal, say Mk20, per month, at the time of their injuries. Suppose B s permanent total incapacity is of the nature that attracts 100 % degree of incapacitation and that supposing worker A dies within few days after his/ her assessment is being done. Will the compensation amounts of these two workers be the same? If not whose compensation amount will be greater than the other one? The answer is No for the first question and it is worker B for the second question. Find out why this will be the case since one would have expected that the one who dies would get more compensation than the one who survives. Note that the formula awards more to the injured employee who is permanently 100 % incapacitated but not dead that an injured employee who dies on spot of accident attracting 100 % degree of incapacitation. This is because different formula multiplying factors of 54 and 42 are used respectively (see 4 & 7 above) Calculation and Distribution of Compensation A worker s monthly earnings shall be calculated to give the rate per month at which the worker was being remunerated during the previous 12 months if he/she has been employed by the same employer, and if not, for any less period during which he/she has been in the employment of the same employer. Where it is not practical at the date of the injury to compute the rate of remuneration, either due to a reason of the shortness of the time during which the worker has been in the employment of his/her employer or due to the casual nature of the employment or due to any reason of the terms of the employment, then to find the worker`s monthly average earnings, consideration shall be made with reference to the average monthly amount which, during the 12 months previous to the injury, was being earned by a person of similar earning capacity in the same grade employed at the same work by the same employer, Furthermore, if there is no person so employed, then the average monthly earnings by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district or locality shall be considered as the worker s average monthly earnings. 111

128 A Summary of Labour Legislation in Malawi - Kalani Malema Where a dependant dies before a claim in respect of death is made or if a claim has been made, or dies before an order for the payment of compensation has been made, the personal representative of the dependent shall not be entitled to payment of compensation, and the claim for compensation shall be dealt with as if that dependant had died before the worker Medical Aid Expenses In addition to any compensation, an employer is responsible for medical treatment of an injured worker during and in the course of his/her employment. Specifically, the employer shall be liable to pay/meet all reasonable medical expenses incurred by a worker within Malawi, or with the advice of the Secretary for Health and on approval of the Board, the employer shall pay for a worker s Medical expenses incurred outside Malawi. The Minister of Labour is, however, required to set limits or ceilings of expenses within which an employer can be held responsible to pay. Any expenses incurred beyond the prescribed limits will presumably be borne by the worker himself/herself. However, any expenses which the employer incurs shall be refunded to him/her by the Board out of the Fund provided the Employer is subject to assessment and that he/she has paid his/her assessment to the Fund in accordance with Minister s regulations on Board s recommendation Procedure for Obtaining Compensation Every injury arising out of and in the course of employment which results in (a) the death of a worker or which may result in death to a worker; or (b) is likely to result in some degree of permanent incapacity to a worker; or (c) in capacitating a worker from following his/her normal employment for more than 14 days, and every injury or death of a worker from any cause whatsoever shall, within 21 days of the date when the injury occurred or the death occurs, be reported by the employer in the prescribed form WC 1 titled: Report Under Section 24 of Death or Accident to the Board 112

129 Workers Compensation Act No. 7 of 2000 (Cap. 55:03) or Commissioner (District/Regional labour offices). Any employer who without reasonable cause, fails to comply with the required responsibility shall be guilty of an offence and liable to a court fine. Compensation Procedure as contained in the Act regulations. As stated above, the employer is supposed to report the death or injury of the worker to the Commissioner or representative (District/Regional labour offices) using a prescribed form WC 1. The Commissioner (labour office) will notify the employer of the intention of the Commissioner to pursue the compensation case on behalf of the employee, using a prescribed form WC 2. The Commissioner or any other officer authorised by him/her will send the worker for medical assessment after which the percentage of incapacity is communicated to the employer (or to the Commissioner; after the setting up of the Workers Compensation Fund) using prescribed form WC 3. Before the claim settlement, the Commissioner shall have established facts leading to the injury or death of the Worker or circumstances leading to the contracting of the disease. The Commissioner may disallow compensation if the claim proves to be out of fraudulent means or arose from negligence of the worker. The injured worker may have recourse/right, if compensation is disallowed, to appeal against the ruling or decision of the Commissioner Establishment of the Workers Compensation Trustee Board (WCTB). Workers Compensation Commissioner shall be the Secretary of the established Board. The Board shall consist of the following 12 members appointed by the Minister: 1. one non public servant member to be the Chairperson. A Vice Chairperson shall be elected by the Board from amongst the rest 11 members. 2. three persons being members of the Employers Consultative Association of Malawi (ECAM). 3. one person being a member of the Malawi Chamber of Commerce and Industry (MCCI). 113

130 A Summary of Labour Legislation in Malawi - Kalani Malema 4. two persons each being a member of a different registered trade union. 5. one person being a member of the Insurance Association of Malawi. 6. one person being a member of the Medical Council of Malawi. 7. one person being a member of the Nurses and Midwifes Council of Malawi; plus 8. two Secretaries as ex-officio members i.e. Secretary for Labour and Secretary for Health who are not part of the Minister s appointments. The Board shall be responsible for overseeing the administration of the Fund with the view to ensuring maximum efficiency. The Board shall have further functions and powers in relation to the execution and administration of the Act which specifically include the following: 1. to make recommendations to the Minister as to the maximum rates of assessments to be paid by employers and as to scales and classifications in relation to such assessment rates, 2. to administer the Workers Compensation Fund, 3. to prevent accidents to workers by such means as the Board thinks fit, 4. to cooperate with any other Government Department and other bodies and persons for that purpose, whether by making contributions towards their expenses or otherwise, 5. to consider data on work related accidents and injuries, 6. to advise the Minister on policy matters relating to workers compensation, and 7. to recommend for the Minister to make regulations that provide for the prescribing of the work procedures, forms and fees among others Administration of the Act The day to day administration of the Act is vested in the Workers Compensation Commissioner. The functions of the Commissioner as defined in the Act are divided into two major categories: 1. Administrative functions which include powers to inspect and in- 114

131 Workers Compensation Act No. 7 of 2000 (Cap. 55:03) vestigate into accidents occurring at various workplace establishments; into assessment of contributions which companies would be paying to the fund and the monitoring of injuries or deaths of Workers. 2. Judicial functions which, by nature, are legal in character and normally performed in a Court of Law. For instance, the distribution of compensation to dependants of a deceased worker that was formerly the courts responsibility is now the Commissioner s responsibility. In this respect, determinations or orders made by the Commissioner may be enforced as if they were determinations or orders made by the Chief Resident Magistrate court in civil cases irrespective of the value involved. Thus in administering the Act, the commissioner is mandated to: 1. receive notice of injuries and claims for compensation; 2. inquire into or cause inquiry to be made into causes of injuries; 3. adjudicate upon all claims and other matters coming before him/ her for decision; 4. determine whether any person is a worker, or an employer for the purposes of compensation Act; and 5. decide any question relating to the following: the right to compensation; the submission, consideration and determination of claims for compensation; computation of earnings; the degree of incapacity of any worker; the amount and method of payment of any compensation; the withholding, revision, discontinuance or suspension of any compensation; determine whether any person is a dependant within the meaning of the Act and if so, the degree of dependency; determine any question relating to the rendering of statements of wages; advise the Board on the determination of the liability for assessment, and method of payment of assessment; determine any other question falling within his/her purview/ powers in connection with the application of the Act or in respect of any employer or worker; 115

132 A Summary of Labour Legislation in Malawi - Kalani Malema report to the Board, upon the expiry of each financial year, on the administration of the Act during that year; collect, compile, analyse and maintain such statistics and information relating to the occurrence or cause of injuries and the grant of benefits to persons as he/she may deem necessary or as may be required by the Board; conduct research into causes and methods of prevention of accidents, injuries and diseases in respect of which compensation may become payable under the Act and make arrangements with any person having appropriate facilities for the conduct of any such research; and investigate whether any disease should be included in or deleted from the Second Schedule and make recommendations to the board in regard to such. Objections by workers or employers against decisions of the Commissioner. Any worker or employer affected by the Commissioner s decision may within 30 days of such decision lodge with the Minister against such decision. An objection should be in writing preferably in a prescribed form accompanied by particulars containing: 1. A concise statement of the circumstances in which the objection is made and the relief or order which the objector claims or the question which he/she desires to be determined. 2. The full name and address of the objector and of any legal practitioner or other representative who represents or is to represent such objector Establishment of Workers Compensation Tribunal (WCT). The Act provides for the establishment of Workers Compensation Tribunal that shall consist of the following 7 members: 1. one non public servant member appointed by the Minister to serve as Chairperson. A Vice Chairperson shall be elected by the Tribunal members from amongst themselves. 2. one person being a member of the Employers Consultative Association of Malawi; 3. one person being a member of a registered trade union; 4. one person from the Medical Association of Malawi; 116

133 Workers Compensation Act No. 7 of 2000 (Cap. 55:03) 5. one member from the Law Society of Malawi; 6. one member from the Insurance Association of Malawi; and 7. one person being a member of the Nurses and Midwifes Council of Malawi. The powers of Workers Compensation Tribunal include: 1. to enter and inspect, to authorise any person to enter and inspect, or to examine any premises of interested persons for the purpose of enabling it to determine any question being considered by it; 2. to administer oaths and to order persons to attend and give evidence or to produce or give discovery and inspection of documents in like manner as in proceedings in the High Court; 3. to award costs of any proceedings before it and direct that such costs shall be taxed upon such scale and in such manner as may be prescribed by Act rules or to award specific sum as costs. It should be noted that the proceedings of the Workers compensation Tribunal shall be considered as judicial proceedings. Any person dissatisfied with the Commissioner or Board decision can appeal to Workers Compensation Tribunal whose decision regarding case facts shall be final but if the query against the Tribunal involves a point of law, then an appeal can be made to High Court and then to supreme Court of Appeal Establishment of Workers Compensation Fund (WCF) The Act provides for the establishment of the Workers Compensation Fund. The fund shall raise funds (moneys) from four sources as follows: 1. any assessments payable by employers including the Government: 2. any moneys paid by employees including the government to the Commissioner as required by Workers Compensation Act, 3. any moneys paid as penalties imposed by the Act other than penalties imposed as fines by a Court; and 4. any other sums to which the fund may become entitled. Workers Compensation Fund shall be spent by the Commissioner with approval of the Board on the ways that include: 1. compensation payments to workers or dependants wherever any employer is liable to pay such compensation; 2. to meet expenditures lawfully incurred by the Commissioner in 117

134 A Summary of Labour Legislation in Malawi - Kalani Malema carrying out his/her functions; and 3. to meet any other expenditure lawfully incurred for due administration of the fund Types of Incapacities Other than Death Results of injuries sustained during an accident could disable a worker to the extent of not carrying out normal duties. Such disabilities according to this Act include: 1. Permanent total incapacity, 2. Permanent partial incapacity, and 3. Temporary incapacity. Permanent total incapacity arises from an injury or combination of injuries whose total loss of earning capacity amounts to one 100 %. These injuries totally incapacitate a worker from any employment which he/she was, before the accident, able to undertake, to the extent that he/she would need a helper throughout his/her life. Permanent Partial Incapacity refers to the incapacity that reduces the earning capacity of a worker in any employment in which he/she was engaged at the time of injury following permanent loss of part of the body in the course of accident. Temporary Incapacity is usually the negative effect of the injury from the day of the injury to the day the worker is deemed fully recovered and fit to resume normal duties Dual System of Claim Settlement. Under the procedure of the repealed Compensation Act, the Ministry of Labour was required to send a claim for compensation to the employer of an injured worker or dead worker and transmit the amount so claimed to the worker or his/her family in order to have the claim settled. Under this new Act, this system is retained as a proper method of settling claims of minor employers. However, the Act further provides that in order to facilitate the settlement of claims of major employers, such employers should be required to make annual contributions to a state controlled Compensation Fund. Whenever a worker has a claim against his/her employer, it will 118

135 Workers Compensation Act No. 7 of 2000 (Cap. 55:03) become the responsibility of the Workers Compensation Commissioner to effect payment on behalf of the employer. A major employer s annual contribution may vary from year to year and may depend, among other things: 1. on the number and category of employees, 2. the frequency with which accidents are known to have occurred during the previous year both in his/her employment premises in particular and in his/her industry in general, and 3. on the size of his/her annual wage bill. For example, an employer in the catering industry is in normal circumstances likely to pay less than a major employer in the agricultural industry because there are likely to be more accidents in any one year on a large sugar estate than one is likely to find on the premises of a hotel. A team of assessors will naturally have to take into account all relevant factors and information before telling a major employer how much is to be contributed. Since the Commissioner is unlikely to pay out to injured workers all the money contributed to the fund, the law provides for the investment of the surplus funds for future use. The distinction between assessable major employer and non-assessable or minor employer is determined by statutory regulations from time to time and may depend, in part, on the number of employees an employer has employed. It can thus be decided, by regulation, that any employer whose number of employees falls below a certain fixed number should be considered a minor employer and, therefore, not liable to contribute to the Fund. His compensation claims are thus settled through the old procedure described as dual system Workers Compensation and Common law Damages The Act sets out the procedure to be followed in claiming compensation and common law damages against parties who may not be employers of injured workers. A worker injured through the negligence of a party who is not his/ her employer cannot recover from him/her, both damages and com- 119

136 A Summary of Labour Legislation in Malawi - Kalani Malema pensation except if the amount of damages recovered by him/her is less than the compensation to which he/she is entitled under the Act. The worker may claim the difference between the two amounts. On the other hand, if the amount of compensation to which he/she is entitled is less than the damages recoverable under common law (as is usually the case) then he/she may claim compensation and later lodge a claim for the difference in amount of damage to which he/she is entitled. The Act authorises a worker to sue his/her employer independent of the Act in order to recover damages where the employer has been negligent or is vicariously liable. A worker can accept compensation under this Act and later sue for damages in the hope of being awarded the difference between the amount of compensation already received and what could have been the amount of damages. If the amount payable is less than the amount of compensation to which a worker is entitled, the worker may claim the difference between the two; and If, upon being taken to court, it is found that an employer is not liable to pay damages, the worker may claim compensation if he/she is entitled to it. Box 13: The Procedures of Workers Compensation Process Workers Compensation Process and Procedures. Currently, there are two main phases involved during the processing of compensation cases. This is the case because Government is using the system of Individual Employer Liability and has not yet implemented the system that requires the establishment of compensation fund from where employers will be pooling funds for compensation payments. The two main phases are: phase one, the initial stage process, and phase two, the final stage process. 120

137 Workers Compensation Act No. 7 of 2000 (Cap. 55:03) Phase one, that is, initial compensation case processes are done in all District and Regional Labour offices in the country whereas, phase two, that is, the final processes are done by the Workers Compensation division at the Ministry of Labour headquarters in Lilongwe. However, it should be noted here that this current set up structure of compensation case procedures may change later depending on government s future plans to change from its current system of individual employer liability to employers pooling fund liability system as provided for in the Workers Compensation Act. An outline of the compensation processes and procedures is as follows: Phase one - The Initial Stage First, during initial stage, the employer should first report an injury (accident or death) as required by the Act, within 21 days from the date when the injury or death occurred, to the District or Regional labour office whose jurisdiction covers the area of the accident resulting into the injury caused. District or Regional labour officers work on behalf of the Workers Compensation Commissioner who does his/her work on behalf of the Board. This employer s report is done on a Workers Compensation prescribed form marked WC 1 titled: Report Under Section 24 of Death or Accident. Copies of this form are readily available in Regional and District labour offices and are supposed to be given out on free of charge. The completed and signed WC 1 form by the employer should be returned to labour office of the district in which the reported accident occurred for processing. Second, in case of an injury resulting into worker s permanent partial or total incapacity the receiving labour office notifies the employer by writing, of the intention to claim workers compensation on behalf of the employer s injured worker and informs the employer that the compensation amount to be claimed will be communicated later after the worker s medical assessment / examination, using a prescribed form marked WC 2 titled: Permanent/partial/total incapacity: Notice of intention to employer. Whereas, for 121

138 A Summary of Labour Legislation in Malawi - Kalani Malema an injury resulting into worker s death the receiving labour office notifies the employer by writing, of the intention to claim workers compensation on behalf of the employer s deceased worker and informs the employer that the compensation amount to be claimed will be communicated later on soon after obtaining and studying all the necessary information about the deceased worker, using a prescribed form marked WC 2A titled: Fatal Accident: Notice of intention to employer. Similarly, with respect to an injury involving only non fatal cases the receiving labour office advises the injured worker by writing, that his/her reported accident is being investigated by Ministry of Labour as required by the Act and also informs the injured worker to report at a labour office immediately he/she recovers so that arrangements for worker to go to hospital for medical examination and report can be made. This is a requirement because workers compensation awards are only payable when an injured worker produces a medical report showing that the worker has indeed suffered disability. Such advice to the injured worker is contained on a prescribed form marked WC 2B titled: Notification to worker. Third, if the injured worker recovers and reports to labour office, he/she will be sent to a certified medical practitioner at the hospital for medical assessment with a covering letter on a prescribed form marked WC 3 titled: Medical Report. This form letter asks the medical practitioner to assess the degree of incapacity arising out of the worker s injury and to report back on the same form letter as soon as possible. A Medical Report duly stamped and signed by Medical practitioner must be returned to the originating labour office for further processes of the case, preferably by the injured worker himself or herself because s/he will be required to be interviewed and to sign a statement of injured worker. Fourth, on receipt of medical assessment report, a labour officer interviews the injured worker while being guided by a prescribed form marked WC 4 titled: Statement of Injured Worker. At the end of the interview, the worker signs for the information provided and recorded on the form certifying that the information provided is true. Thereafter, a labour officer notifies the employer about the content of the medical assessment report for the employer s injured worker using a prescribed form marked WC 5 titled: 122

139 Workers Compensation Act No. 7 of 2000 (Cap. 55:03) Notification to Employer of Medical Assessment. In this WC 5 form, a labour officer informs the employer of the next step which is to forward the injured worker s case file to the Workers Compensation Commissioner in the Ministry of Labour Headquarters in Lilongwe from where a claim will be filed to the employer for payments. In addition, the employer is further advised to write labour office informing on whether or not the worker received any wages or any other form of assistance during the period of incapacity. This marks the end of initial stage processes. Note that all workers compensation case files finalised at district/regional level are sent to the Workers Compensation Commissioner for further final processes. This is the case despite the fact that some case files have medical assessment reports with zero percentage of incapacitation implying that whatever computation that can be done using the Act compensation formula with such a zero factor will still give out the answer zero as compensation amount which means no compensation to be paid. The process is like that because it is only the Workers Compensation Commissioner who has powers, according to the Act, to close one s file whose injured worker was assessed zero % as degree of incapacitation. Finally, it should be remembered that every fatal case file is sent to the Commissioner immediately after the completion of form WC 2A provided that a signed List of Would be Dependents Letter by the District Commissioner of the district from where the deceased worker originated is sourced and brought by deceased worker s relative (s) to labour office for inclusion in the fatal case file. Otherwise all non fatal case files are forwarded to the Commissioner after completion of the form WC 5. After the initial stage, workers compensation process continues to the phase two. Phase two - The Final Stage Fifth, after the initial processes get completed at a District/Regional labour office with form WC 2A for fatal cases and form WC 5 for non fatal cases, the injured worker s compensation case file sent and received by Workers Compensation division office at the Ministry of Labour headquarters in Lilongwe is acted upon with first process that starts with the submission of a claim form to the employer. 123

140 A Summary of Labour Legislation in Malawi - Kalani Malema The claim submission to the employer uses either of the two prescribed forms marked WC 6 titled: Claim of Compensation: Non Fatal Cases for non fatal cases and WC 6A titled: Claim of Compensation: Fatal Cases for fatal cases. The two forms contain the computed total sums of money to be payable to the Commissioner for the injured worker or his/her certified dependents in case of a fatal case. In addition, the claim form letter asks the employer to respond on whether or not he/she agrees to the computed compensation amounts and also to remit such claimed amounts to the Commissioner within the time frame specified in cases where the employer agrees to the claimed amounts without objections. All remittances must be in cheques together with the claim form in triplicate as a cover letter of which one original copy should be kept by the employer and two other copies for the Commissioner. Sixth, on receipt of the remitted claimed amount from the employer by the Commissioner, the cheque whose payee is the Workers Compensation Commissioner is deposited into the Compensation fund account and thereafter a specific cheque in the name of the injured worker is issued by the Commissioner. The cheque is thus sent to the district/regional labour office from where the case was reported for payment to the injured worker or deceased worker s certified beneficiaries by using a prescribed form marked WC 7 titled: Agreement as to Compensation to be paid by the Employer in the case of Injury. This form is completed by the Commissioner in quadruplicate. Seventh, at a district/regional labour office, the injured worker will be paid his/her compensation after signing all the four copies of WC 7 in presence of a witness. A labour officer paying will also sign such forms as well as the employer and finally a senior labour officer at the office will verify the payment by signing and officially stamping all the copies which should be distributed as follows: one copy for the injured worker, one copy for the employer, one copy for the office record and the other copy to be sent back to the Workers Commissioner for records of such payment. For the received compensation cheque by a labour office in respect of deceased workers, the cheque has to be recorded at office and then paid to 124

141 Workers Compensation Act No. 7 of 2000 (Cap. 55:03) the District Commissioner immediately for his/her onward transmission or payment to the certified beneficiaries of the deceased worker s compensation. Such a cheque is issued by the Commissioner with a covering letter which is also a prescribed form marked WC 10 titled: Workers Compensation Distribution made under Section 13 of the Workers Compensation Act. In case of injured workers involved in road accidents, a copy of accident report issued by the police shall be required to be included in the worker s case file. For the injured workers in the civil service, a copy of the worker s pay slip for the month of the injury shall be required to be attached within the worker s case file. In addition, for the injured public civil servants, a prescribed form marked WC 8 titled: Certificate From Government, shall be required to be completed and signed by the Principal Secretary or Representative of the Ministry under which the injured worker works or worked. Furthermore, for those employers who might have not reported accidents involving their employees to labour office due to various reasons known to them are required to do so upon the knowledge of such unreported injuries/ accidents. This process uses a prescribed form marked WC 9 titled: Employer to Report Death or Injury which is issued by a labour officer to the concerned employer for action. The form WC 1 is enclosed together with this WC 9 form to the employer for completion and reporting. The form, WC 9, asks the employer to report the unreported accident as quickly as possible by completing the enclosed form WC 1 and to explain why the accident was not reported. Thus the end process, of the final stage of compensation process and procedure, is the payment of compensation by the employer to the injured worker or certified beneficiaries through the Workers Compensation Commissioner and district/regional labour offices. It is a law requirement that the injured worker be paid through the Compensation Commissioner since it is the Commissioner in the Ministry of Labour, according to the Act, who is vested with powers to claim compensation awards on behalf of the injured workers from their respective employers. This process and procedure, once complied with, helps the Compensation division office to have the required information to close any paid compensation case file officially and procedurally. 125

142 7 The Pension Act No. 21 of Commencement of the New Pension Law It came into force on 1 st June, Pension Objectives Ensure that every employer to which the Act applies provides Pension for every person employed by that employer. Ensure that every employee in Malawi receives retirement and supplementary benefits as and when due. Promote the safety, soundness and prudent management of Pension funds that provide retirement and death benefits to members and beneficiaries. Foster (encourage) agglomeration (accumulation) of national savings in support of economic growth and development of the country. This means Pension funds can be loaned out to earn interests Application of the Pension Act Applies to all employers and employees in Malawi including employees on contract employment as well as employees on probation and temporary basis except the exempted ones. Currently the exempted ones are as follows: 1. All employers with less than 5 employees each receiving less than MK10,000 per month and must have not been running any pension / gratuity scheme prior to commencement of this Act, on 1 st June, Employees with less than three (3) years to retirement 126

143 The pension act no. 21 Of Domestic Workers 4. Tenants 5. Seasonal Workers 6. Members of Parliament (MPs). 7. Expatriate employees with valid temporary employment permit. 8. Government exempted for first 2 yrs from 1 st June, 2011 to allow for reformation of Civil Service Pension Scheme i.e. reform NCPS to CPS. That meant that Government was required to comply with effect from 1 st June, However Government s exemption was further extended to 2 more years until 1 st June, 2015 {the Pension (Amendment) Act of 2014}. Thus by implication, Government is no longer exempted with effect from June Contributory National Pension Scheme Pension Act establishes a Contributory National Pension Scheme (CNPS) Two components of the CNPS: 1. National Pension Fund (NPF) that will be for all Civil Servants including all public employees of companies and institutions controlled by government. 2. All Other Pension Funds to be licensed according to requirements of the Pension Act. These are for all employees of private employing individuals and institutions Mandatory duties of Employer Remit / pay employee s monthly pension contributions to the fund trustees within 14 days of the following month. Note that any Employer s outstanding contributions (delayed monthly contributions) will attract interest at bank rate plus 10% as shall be required by a Ministerial order. Maintains a life insurance policy cover for each employee with a minimum amount of one times the employee s annual pensionable emoluments. Cover / pay the pension ancillary (administration) costs of the Pension fund in respect to his / her employees on pension fund. All employers to carry out assessments of their employees` severance due entitlements. 127

144 A Summary of Labour Legislation in Malawi - Kalani Malema 7.6. Minimum Monthly Pension Contributions Employer shall be paying minimum of 10 % of employee s monthly basic earnings. Employee shall be paying minimum of 5 %. The 10% and 5% by employer and employee respectively to be a must with effect from 1 st January, However from June 2011 to December, 2012, Employer may contribute only 7.5 % instead of 10% for his / her employee. Voluntary contributions and upward contribution adjustments are allowed. Downward adjustments for employers contributing higher rates than 10 % before 1 st June, 2011 and for life insurance cover if it was higher than employee s annual pensionable amount shall not be allowed Employee s (fund member s) rights with respect to access to fund information. Every employee as fund member, has right to know pension fund investment strategy; Right to know investment performance and financial position; Right to know fees and charges payable by him / her as fund member; Right to request information about the fund or his entitlements in the fund pool Right to require for meaningful and accurate information Right to nominate beneficiaries for his death benefits. Right to access pension benefits accumulated prior to commencement of the Act which is to be computed based on previously approved formula of the pension fund. This access right is also applicable even after the pension scheme approval Pension fund benefits and their payments Conditions under which fund benefits are payable: 1. When an employee has reached retirement age as agreed by one s employer provided it is within the Act s age range of 50 to 70 years. 2. When a member retires on the basis of years of service which is at 20 years. 128

145 The pension act no. 21 Of When the employee is incapacitated as certified by a Malawian registered medical practitioner. This is retirement on Medical grounds. 4. When the employee has decided to leave Malawi permanently in which case: 40 % of the accumulated pension amount becomes payable on the grant of the application Balance of 60 % to be payable after 12 months from the date of the first payment once the trustee is satisfied that the employee has indeed left Malawi permanently. 5. When the employee has permanently left the service of employer and that six months have elapsed from the date of employment termination during when the terminated or resigned employee fails to secure employment with another employer in which case only employee s accumulated pension contributions are payable. 6. When the Registrar has given Permission as empowered under Section 65 of the Act Note that {the Pension (Amendment) Act of 2014} allows for early payment of benefits out of a pension fund whereby the Registrar may permit the trustee of the fund to pay benefits to the member out of the fund if the Registrar is satisfied that the member has not secured another employment for a period of more than six months before necessarily reaching the legal retirement age. Protection of Pension benefits 1. Note that 40 % of the employee s retirement pension benefits shall be instantly payable as a lump sum and the rest 60 % shall be paid monthly in form of annuities for the rest of employee s life. Annuity is a monthly pension receivable wage. 2. Annuities may also be commutated and paid once in case of an employee who is to leave Malawi permanently as well as an employee whose calculated pension amount does not exceed certain prescribed amount in the Registrar s directive. 3. Pension fund benefits shall not be attached, sequestrated or levied upon in respect of any debt or claim and they shall not be pledged or charged or be subject to other security interest. 4. Section 91 is on calculation or assessment of severance due entitlement against employer pension contribution or gratuity. 129

146 A Summary of Labour Legislation in Malawi - Kalani Malema 5. Deceased Estates Duty Act and any other deceased estates law such as Wills, Inheritance and Protection Act shall not apply to employee s entitlement to pension benefits Pension key stakeholders Employees as members of Pension funds. Employers as sponsors of Pension funds. Three Policy and regulatory institutions include: 1. Ministry of finance responsible for policy direction regarding the Act implementation. 2. Ministry of Labour responsible for checking compliance of the Act. 3. Registrar of Financial Institutions the Reserve Bank of Malawi governor responsible for registration of all employers; for prudential fund supervision and issuing of pension regulations and directives. The Market Players include: 1. The fund trustees responsible for payment of the pension benefits. 2. Administrators of the pension funds 3. Investment Managers 4. The Custodians of the Pension funds. Arbitration shall be done by institutions i.e. Industrial Relations Court (IRC) Roles of Labour Officers under the Pension Act. Sensitize employers and employees alike on the requirements of the Pension Act Carry out inspections to ensure that: 1. All employees are on a Pension Scheme 2. Severance due entitlements have been calculated correctly; have been assessed against employer Pension contributions and that they have been paid into Pension fund. 3. Employers have arranged for group life insurance cover for all employees on terms that are consistent with the Act. 4. Employers are making contributions at the correct rate and on time. Report cases of non-compliance to the Registrar for appropriate 130

147 The pension act no. 21 Of 2011 sanctioning. Report any information that may be helpful in the implementation of the Act Assessments under Section 91 of the Act. Every employer shall recognize as part of an employee s pension dues, each employee s severance due entitlement accrued from the date of employment of that employee to the date of commencement of this Act. This means that at the start of this Act, one s previous accumulated severance allowance, if any, will be added to his / her new started pension contributions. For employers not providing pension or gratuity prior to the date of commencement of this Act, the severance entitlement shall be calculated in accordance with the provisions of the employment Act. This means that those employees whose employers did not have pension and gratuity provisions for them before the pension Act came into force will have their severance allowances calculated using the old severance allowance formula of the Employment Act, First Schedule, which was in force immediately prior to the date of commencement of this Pension Act. Their calculated severance allowances will be used as opening balances. For employers providing pension or gratuity prior to the date of commencement of this Act, the severance entitlement shall be calculated as having a value equal to the value of: 1. the severance entitlement calculated in accordance with the provisions of the Employment Act; (old severance allowance formula of the Employment Act, First Schedule, which was in force immediately prior to the date of commencement of this Pension Act will be used here. 2. less the sum of the accumulated employer pension contributions made or gratuity paid prior to the date of commencement of this Act and any growth on such contribution provided that: the severance entitlement referred to above shall be greater than the sum of the accumulated employer pension contributions made or gratuity paid to the employee prior to the date of commencement of this Act and any growth on such contribution, or 131

148 A Summary of Labour Legislation in Malawi - Kalani Malema if the severance entitlement is equal to or less than the sum of the accumulated employer pension contributions made or gratuity paid to the employee prior to the date of commencement of this Act and any growth on such contributions, then the severance entitlement shall not be recognized as pension. All the accumulated employer s pension contributions and any growth (interest) on such contributions will form the required accumulated employer s contributions. Severance due entitlements calculated may be paid immediately, or at latest within 8 years from 1 st June All unpaid liabilities (severance due entitlements) to be escalated at the interest rate of consumer price index (CPI). Severance due entitlements become immediately payable on termination of employment contract and not to be done within 8 years as is the case with the employee who is still in employment with employer. All employers are required to carry out assessment of their employees severance due entitlements from first dates of their employment to 31 st May, Employers are required to recognize the calculated severance due entitlement to be part of an employee s pension dues. For those employers previously not providing pension or gratuity, accrued severance due entitlement shall form the opening balance of an employee s pension benefits. Box 14: Illustrated Examples to Understand Calculations of Pension opening balances/severance due Entitlements Under section 91 of the Pension Act of Illustrative Examples to Understand Assessments Under Section 91 of the Pension Act of 2011 Example 1: Mr. Mwenitete worked for 15 years and was receiving monthly basic earnings of Mk30, as at 31 st May, He had no employer accumulated contributions since his employer was not running any pension or gratuity scheme for employees. 132

149 The pension act no. 21 Of 2011 A. Severance due entitlements = Mk30, = Mk450, B. Less employer accumulated contributions = Mk0.00 C. Pension due entitlement/mwenitete s Pension opening balance as at 1 st June, 2011 = A - B = Mk450, Mk0.00 = Mk450, * Section 91 (2) of the Pension Act. For those employers previously providing pension or gratuity, only the difference between severance due entitlement and accumulated employer contributions or gratuity with earned interests paid is payable to top up pension funds for employees provided the difference is positive (see example 2 below). Example 2: Mr Kalagho worked for 15 years and was receiving monthly basic earnings of Mk40, as at 31 st May, i. Assume Kalagho had employer accumulated contributions with interest of Mk370, by 31 st May, A. Severance due entitlement = Mk40, x 15 = Mk600, B. Less employer accumulated contributions = MK370, C. Positive difference between A and B = (A - B) = Mk600, Mk370, = Mk 230, D. Kalagho`s pension opening balance as at 1 / 06 / * Section 91(3) (a) & (b) (i) of the Pension Act. = C = Mk230,

150 A Summary of Labour Legislation in Malawi - Kalani Malema ii. However, assuming, Mr Kalagho had employer accumulated contributions with interest of MK650, and not Mk370, as in 2 (i) above. A. Severance due entitlement = Mk40,000 x 15 = Mk600, B. Less employer s accumulated contributions = Mk650, C. Negative difference between A and B = A - B = Mk600,000 - Mk650,000 = - Mk50, (Negative) E. Kalagho s pension opening balance as at 1 / 06 / = Mk (Nil) *Section 91 (3) (a) & (b) (ii) of the Pension Act. Note that accumulated employer s pension contributions and any growth (interest) on such contributions will form the required accumulated employer s contributions. Severance due entitlements calculated may be paid immediately, or at latest within 8 years from 1 st June All unpaid liabilities (severance due entitlements) to be escalated at the interest rate of consumer price index (CPI). Severance due entitlements become immediately payable on termination of employment contract and not to be done within 8 years as is the case with the employee who is still in employment with the employer. Example 3: How is pension related to gratuity or severance allowance? According to the Pension Act, 2011 once read together with the Employment (amendment) Act (EAA) of 2010 and with respect to the employer s exemption under the EAA from providing pension benefits to employees, the employer shall recognize the severance due entitlement as gratuity opening balance due to employees. And this gratuity will be calculated in accordance with part II of the first schedule of the Employment (amendment) Act shown in this book under the Employment Act. This is just one way to show how Pension Act is related to the Employment Act which includes a section on gratuity. 134

151 The pension act no. 21 Of 2011 Note that pension benefits and the current severance allowance, the termination compensation/disturbance allowance according to Justice De- Gabriele (2012 & 2015), can both be paid to an employee provided such employee qualifies to the requirements of either of the two named benefits. Similarly, gratuity and severance allowance can also be paid together depending on employee s qualifications on each of them. However, it is the pension and gratuity that cannot be paid together because where pension is payable, gratuity is exempted and vice versa. Finally, gratuity can be paid to an employee on death or at retirement or at termination and pension too is payable at retirement or termination. Example 4: Suppose Mr Kalagho, whose employer has never opened and ran pension scheme for his/her employees despite not being exempted by the pension Act of 2011, is terminated from his employment today, 30 th June 2017 by way of retrenchment process after working continuously for the same employer for 16 years from 1 st January 2001 and that his monthly basic earnings as at termination date is Mk60, Determine all termination benefit packages that can be payable to Mr. Kalagho in addition to any accrued leave pay and salary arrears if any? And illustrate how can such benefits be calculated? Answer: Legally both Pension and Severance allowance must be paid. In terms of calculations: 1. Pension benefits = a. Pension opening balance (severance due entitlement which is the Old severance allowance for 10 years from 2001 to 2011). b. plus Pension monthly contributions with interest if any for 6 years from June 2011 to 30 th June Plus new Severance allowance (the termination disturbance allowance) for 16 years = a. 2 weeks wages for each year x 5 years ; b. plus 3 weeks wages for each year x 5 next years; c. plus 4 weeks wages for each year x 6 next years. 135

152 References International Labour Organisation (ILO) Conventions, Geneva: International Labour Office: ILO Convention No. 87 of 1948: Freedom of Association and Protection of the Right to Organise; ILO Convention No. 98 of 1949: Right to Organise and Collective Bargaining; ILO Convention No. 144 of 1976: Tripartite Consultation (International Labour Standards); ILO Convention No. 26 of 1928: Minimum Wage-Fixing Machinery; ILO Convention No. 99 of 1951: Minimum Wage Fixing Machinery (Agriculture); ILO Convention No. 131 of 1970: Minimum Wage Fixing Convention with Special Reference to Developing Countries; ILO Convention No. 29 of 1930: Forced Labour; ILO Convention No. 105 of 1957: Abolition of Forced Labour; ILO Convention No. 64 of 1939: Contracts of Employment (Indigenous Workers); ILO Convention No. 86 of 1947: Contracts of Employment (Indigenous Workers); ILO Convention No. 100 of 1951: Equal Remuneration; ILO Convention No. 111 of 1958: Discrimination (Employment and Occupation); ILO Convention No. 138 of 1973: Minimum Age; ILO Convention No. 158 of 1982: Termination of Employment; ILO Convention No. 182 of 1999: Worst Forms of Child Labour; ILO Convention No. 12 of 1921: Workmen s Compensation (Agriculture); and, ILO Convention No. 19 of 1925: Equality of Treatment (Accident Compensation). International Labour Organisation (ILO) Convention No. 184 of 2001 on Occupational Safety and Health. Justice D.A. DeGabriele in Francis Mikoyo versus Lujeri Estate, [Matter No. PR. 18 of 2015 (Unreported)] IRC Ruling, IRC, Blantyre, Malawi. Justice D.A. DeGabriele in Hotel, Food Processing and Catering Workers Union versus Bakhresa Grain Milling Company, [Matter No. PR. 408 of 2012 (Unreported)] IRC Ruling, IRC, Blantyre, Malawi. Kachika, T., White, S., & Banda, M.K., (2005), Know Your Employment Rights, Limbe: 136

153 References Women and Law in Southern Africa (WLSA) Research and Education Trust. Kanyongolo, N.R., (2003), Summary of Labour Legislation in Malawi, A paper Presented for Discussion at the Seminar on Labour Inspectors Training: Working Better for Malawi, Held at Sun & Sand Holiday Resort Mangochi, Malawi. Malawi Government, (1966), The Constitution of the Republic of Malawi, Zomba: Government Press. Malawi Government, (1994), The Constitution of the Republic of Malawi, Lilongwe: Government Press. Malawi Government, (2001), The Constitution of the Republic of Malawi as amended, Lilongwe: Government Press. Malawi Government, The Geneva Conventions Act (Cap. 12:03 Laws of Malawi), Lilongwe: Government Press. Malawi Government, Treaties and Conventions Publication Act (Cap 16:02 Laws of Malawi), Lilongwe: Government Press. Malawi Government, (2012), Employment Act Cap. 55:02 : Employment (Prohibition of Hazardous Work for Children) Order, Lilongwe: Government Press. Malawi Government, Labour Legislative Acts of Parliament, Lilongwe: Government Printer (Press): Public Service Act, No. 19 of 1994; Labour Relations Act, No. 16 of 1996 (Cap. 54:01 Laws of Malawi); Occupational, Safety, Health and Welfare Act, of 1997 (Cap. 55:07 Laws of Malawi); Employment Act, No. 6 of 2000 (Cap. 55:01 Laws of Malawi); Workers Compensation Act, No. 7 of 2000 (Cap. 55:03 Laws of Malawi); and, Pension Act No. 27 of The Pension (Amendment) Act of Malawi Government, (2010), Employment (Amendment) Act, No. 27 of 2010, Lilongwe: Government Press. 137

154 Employment Act (Cap 55:01): Employment (Minimum Wages) Amendment Order, 2015 The Malawi Gazette Supplement, dated 24 th September, 2015, containing Regulations, Rules etc as Government notice No. 32. Lilongwe, Malawi: The Government Printer. Malawi Government, (1999), Technical Entrepreneurial Vocational Education and Training (TEVET) Act (Cap. 55:06 Laws of Malawi), Lilongwe: Government Press. Malawi Government-Ministry of Labour (2011), Tenancy Labour Bill, No. 20 of 2011, Lilongwe: Ministry of Labour Headquarters. Malawi Government-Ministry of Labour (2015), Collective Bargaining Agreement (CBA), Draft document, Lilongwe: Ministry of Labour Headquarters. Malawi Law Commission, (2007), Draft Report of the Special Law Commission on the Review of the Constitution, Lilongwe: Law Commission.

155 About the author Kalani Mbeye Malema is a labour inspector and researcher currently working in the Malawi -Ministry of labour. He holds Bachelors and Masters Degrees both from the University of Malawi. His current interests are in the management of workplace labour disputes and labour productivities under which he wants to research, for his proposed PhD research, on the nature and characteristics of workplace labour disputes and their impacts on economic development in Malawi. His recent journal publications appear in the International journal of public administration and management Research (Malaysia), Open Science journal (Hungary) and International journal of science and Research (India), among others. This book, A Summary of Labour Legislation in Malawi, contains a brief and user friendly summary containing key and relevant provisions of all the labour legislative Acts to provide an opportunity for readers to access all the necessary labour standards from one book other than from multiple sources. The book is also part of the solution to a challenge for which most of the general public in Malawi and indeed the key social partners in the employment relationship face in respect of the legislation Act booklets which are bulky and that they are written in legal language thereby making it difficult for some of the users without formal training or legal background in law to use and understand meanings of the provisions correctly. 139