Texts of pending comments

Articles 2(1), 5(1) and 6 of the Convention. Effective tripartite consultations. Reports on consultations. In its previous comments, the Committee requested the Government to provide detailed updated information concerning the procedures put in place to ensure effective tripartite consultations. The Committee further requested the Government to provide updated information on the nature and outcome of tripartite consultations held during the period covered by the report on each of the matters concerning international labour standards set out in Article 5(1)(a)–(e), including information as to the frequency of such consultations and to supply copies of reports produced on the working of the procedures provided for in the Convention (Article 6). The Government reports that consultations regarding the Safety and Health in Mines Convention, 1995 (No. 176), have not yet taken place. The Government undertakes to keep the Committee informed of progress made in this regard. The Committee notes, however, that the Government does not provide information with regard to the procedures in place to ensure effective tripartite consultations concerning the measures to be taken at the national level in relation to international labour standards, as required under Article 2(1) of the Convention. Moreover, the Government does not provide copies of any reports produced on the working of the procedures provided for in the Convention (Article 6).The Committee therefore reiterates its request that the Government provide updated detailed information on the procedures established to ensure effective tripartite consultations (Article 2(1) of the Convention). The Committee also once again requests the Government to communicate concrete information on the content, outcome and frequency of tripartite consultations held during the period covered by the report on each of the matters concerning international labour standards set out in Article 5(1)(a)–(e) of the Convention, particularly in relation to: questionnaires concerning items on the agenda of the Conference (Article 5(1)(a)); the submission of instruments adopted by the Conference to the National Assembly (Article 5(1)(b)), and reports to be made on the application of ratified Conventions (Article 5(1)(d)). In addition, the Committee reiterates its request that the Government supply copies of any reports produced on the operation of the procedures provided for in the Convention (Article 6).

The Committee recalls that the ILO Governing Body (at its 334th Session, October–November 2018), on the recommendation of the Standards Review Mechanism (SRM) Tripartite Working Group, classified Convention No. 45 as an outdated instrument, and has placed an item on the agenda of the International Labour Conference in 2024 (112th Session) concerning its abrogation. The Governing Body also requested the Office to follow-up with member States currently bound by Convention No. 45 to encourage the ratification of up-to-date instruments concerning OSH, including but not limited to the Safety and Health in Mines Convention, 1995 (No. 176), and to undertake a campaign to promote the ratification of Convention No. 176. The Committee therefore encourages the Government to follow up on the Governing Body’s decision at its 334th Session (October–November 2018) approving the recommendations of the SRM Tripartite Working Group, and to consider ratifying the most up-to-date instruments in this subject area.

The Committee notes the observations of the Teachers Union of Malawi (TUM) and the Private Schools Employees Union of Malawi (PSEUM), received on 3 September 2021, concerning matters examined under this comment, and alleging violations of trade union rights in practice. The Committee requests the Government to provide its comments in this respect.

The Committee notes the Government’s indication that the Labour Relations (Amendment) Bill was abandoned and new plans are being put in place to commence fresh consultations on the review of the Labour Relations Act (LRA). The Government states that the amendment of the LRA will ensure that its provisions are in conformity with the Convention.

Article 3 of the Convention. The right of organizations to freely organize their activities and formulate their programmes. The Committee notes the TUM’s and PSEUM’s indication that the Labour Relations (Amendment) Bill approved by the Parliament in July 2021 established a list of essential services to which the right to strike and lockdown does not apply. The Committee notes that the Government reiterates in general that the LRA provides the right to workers and employers organizations to freely organize their activities and formulate their programmes without interference. The Committee recalls its expectation that the list of essential services set out in the LRA will be limited to those services the interruption of which would endanger the life, personal safety or health of the whole, or part, of the population, and that adequate protection will be afforded to the affected workers to compensate for the restrictions imposed on their freedom of action, and it requests the list of the essential services included in the LRA bill approved by Parliament in July 2021.

Article 4. Dissolution or suspension of organizations by administrative authority. The Committee had previously referred to the need to amend section 18(4) of the Labour Relations (Amendment) Bill, which provided that if an organization failed to comply with the provisions of subsection (1) (which required an organization to annually submit audited financial statements, a list of the names and postal addresses of its officers, and its number of members) after being given a reasonable opportunity to do so, the Registrar could suspend and even cancel the registration and certificate of an organization (pursuant to sections 18(4) and (5)). The Committee had noted, in this connection, that section 18(6) of the Labour Relations (Amendment) Bill provided that an organization could appeal against a decision of the Registrar to suspend or cancel its registration and certificate of registration. The Committee had requested the Government to indicate: (i) whether an organization’s appeal had the effect of suspending the administrative decision, pending the issuance of a final decision by the judiciary; and (ii) whether the judiciary, upon hearing an appeal, was able to deal with the substance of the case and to decide whether or not the provisions, pursuant to which the administrative measures in question were taken, constituted a violation of the rights guaranteed by the Convention. Regretting not having received any information in this regard, the Committee reiterates its request and considers that in the event that either of these judicial safeguards against dissolution is not provided for, the Government should take the necessary measures, including through the LRA under review, to ensure that the measures of dissolution of trade union organizations may only occur in extremely serious cases and following a judicial decision.

The Committee once again expresses its firm expectation that the Government will take the necessary measures to ensure that the revised LRA will be in full conformity with the Convention. The Committee recalls that the Government may avail itself of the technical assistance of the ILO and requests it to provide information on any development, including a copy of any adopted text.

The Committee takes note of the observations made by the Teachers Union of Malawi (TUM) and the Private Schools Employees Union of Malawi (PSEUM), received on 3 September 2021, containing allegations of interference in trade union activities. The Committee requests the Government to provide its comments in this regard.

Article 4 of the Convention. Measures to encourage and promote collective bargaining. In its previous comments, the Committee had requested the Government to take the necessary measures to ensure that if there is no union representing the required percentage to be designated as the collective bargaining agent, collective bargaining rights are granted to the existing unions, jointly or separately, at least on behalf of their own members. The Committee notes that the Government reiterates that the social partners are yet to request for the review of the bargaining threshold of 20 per cent, established in law, and that if there are any changes in the threshold, the Committee will be communicated accordingly. The Committee had also requested the Government to provide information on the number of workers covered by the collective agreements in force in the country. The Committee notes the Government’s indication that currently there are 40 collective bargaining agreements in place covering the sectors of finance; retail; private schools; agriculture; manufacturing; printing; media; transport; statutory; security; hotels; and construction. Of these, only 14 have data on the number of workers covered, which corresponds to 2,922 (1,584 male and 1,261 female). The Committee notes the Government’s indication that it has put in place conducive legislation and environment for workers and employers’ organizations to have collective bargaining agreements, while it acknowledges that trade unionism coverage in the country is still low and that this affects the number of collective bargaining agreements in place as well as coverage. In this respect, the Committee emphasizes once again that the representativeness requirements set by legislation to be designated as a bargaining agent may bear a substantial influence on the number of collective agreements concluded and that such requirements should be designed in a manner that effectively promotes the development of free and voluntary collective bargaining. The Committee therefore requests once again the Government to take the necessary measures, in consultation with the most representative social partners, to ensure that the threshold established by legislation to become a bargaining agent effectively guarantees the promotion of collective bargaining within the meaning of the Convention, taking into consideration that, when the threshold is not reached, the existing unions should be given the possibility, jointly or separately, to bargain collectively, at least on behalf of their own members. The Committee also requests the Government to indicate the measures taken or envisaged to encourage and promote collective bargaining in all sectors covered by the Convention, and to continue providing information on the number of collective agreements concluded and in force, the sectors concerned and the number of workers covered by these agreements.

Articles 1 to 4 of the Convention. Assessing the gender pay gap and its underlying causes. Statistics. In its previous comments, the Committee asked the Government to create the necessary conditions for the collection and processing of data on the earnings of men and women in the public and private sectors, including in the agricultural sector, and send such statistical data once available. It also asked the Government to provide information on any regulations for “the collection of data on incidences and causes of discrimination on account of gender for the purposes of policy reform and programming” issued under section 23(1)(d) of the Gender Equality Act (GEA) of 2013 and on their implementation, or other action taken to collect and analyse, in the framework of the GEA, any statistical data on the nature, extent and causes of inequalities in remuneration between men and women. The Committee notes that in its report the Government indicates that statistics for the private sector are not readily available. The Committee hopes that the Government will be in a position to provide statistical data on the earnings of men and women in the public and private sectors with its next report and asks for information on the measures taken to implement section 23(1)(d) of the Gender Equality Act with regard to the collection and analysis of data on inequalities in remuneration between men and women and their outcome. It reminds the Government that it may avail itself of technical assistance from the Office.

Occupational gender segregation. Previously, the Committee asked the Government to continue to: (1) take initiatives, such as increased training opportunities, to promote the access of women to higher level positions and promote gender equality throughout the public service at all levels and in all occupations; and (2) provide statistics on the representation of women in decision making positions (grades A to F). The Committee notes the Government’s indication that training opportunities are continuously provided to civil servants. The Committee also notes that in 2019, according to the statistics provided by the Government, 25 per cent of women held decision-making positions in the public service (grades A to F) while 37 per cent of women were employed in non-decision-making positions. The Committee notes the Government’s statement that the number of women employed in the public service is lower than the ideal. In this regard, the Government indicates that, through the Department of Human Resources Management and Development, it encourages applications from women in the job advertisements. Concerning the distribution of men and women in the various economic sectors, the Committee notes, from the 2018 statistics concerning the female population aged 15–64, that women are mainly engaged in agriculture, forestry and fishing, accommodation and food service activities, and education. Recalling from its previous comments that men have higher educational and professional qualifications than women, the Committee emphasizes the importance of taking measures to promote women’s and girls’ access to education and training opportunities and refers to its comments under the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). The Committee asks the Government to: (i) continue to provide statistics on the distribution of women and men in the different positions and occupations in the public and private sectors; and (ii) provide information on the measures specifically adopted to promote women’s access to a broader range of occupations and sectors of activity as well as to decision-making and managerial positions, and their results.

Articles 2 and 3. Objective job evaluation. Pay structure. Public Service. Noting the lack of a harmonized pay structure in the public service, the Committee expressed the view, in its previous comments, that a harmonized pay structure in the public service would help close the gender pay gap as women often tend to be employed in lower-paying agencies, jobs or occupations and to have a limited access to additional benefits related to employment. It thus asked the Government to provide information on the implementation of the Malawi Public Service Management Policy 2018–22 with respect to equal remuneration for men and women public servants for work of equal value, including specific information on the process of harmonization of the pay structure across the public and the results achieved. The Committee notes the Government’s indication that the Department of Human Resource Management and Development (DHRMD) prepared a Bill providing for the establishment of a National Remuneration Commission that is to ensure the harmonization of conditions of service and the pay structure across the public service and review them every five years. The Government indicates that the Bill has since stalled and the DHRMD is currently working with the Ministry of Justice to ensure that the Bill can be presented and debated in Parliament soon. The Committee asks the Government to provide information on any developments concerning the establishment of the National Remuneration Commission and the harmonization of the pay structure in the public service.

Private sector. Recalling that the Employment Act of 2000 provides for equal remuneration for work of equal value without any discrimination, in particular based on sex, and noting the lack of information in this respect regarding the private sector, the Committee asked the Government, in its previous comments, to provide specific information on the steps taken to promote the application in practice of this principle specifically in the private sector and the use of objective job evaluation methods. The Committee notes the Government’s undertaking that it will engage the Employers Consultative Association (ECAM) to promote the application of the principle of the Convention in the private sector. The Committee asks the Government to provide information on any progress made in promoting the principle of the Convention in the private sector in collaboration with the Employers Consultative Association, including information on any activity specifically undertaken to promote the use of objective job evaluation methods.

Enforcement and awareness-raising. Noting the absence of specific information on the points raised in its previous comments, the Committee again asks the Government: (i) to focus its efforts of training and awareness-raising for employers and workers as well as the competent authorities, including judges, labour inspectors and other public officials, more specifically on the principle of equal remuneration for work of equal value; (ii) to ensure that access to appropriate procedures and remedies is effective; and (iii) to provide information on any cases of violation reported to, or detected by, the labour inspectors, and any related judicial decisions regarding the equal pay provisions in the Employment Act (section 6(1)), as well as any cases addressed by the Human Rights Commission (MHRC) regarding discrimination based on sex with respect to remuneration.

Article 1(1)(b) of the Convention. Discrimination based on additional grounds. HIV status. In its previous comments, the Committee asked the Government to provide information on: (1) the implementation of the HIV and AIDS (Prevention and Management) Act of 2018 in practice, including on any cases of discrimination based on HIV status dealt with by the labour inspection services or the courts; and (2) the measures taken to raise awareness of the anti-discrimination provisions of the Act among workers, employers and their organizations as well as the public in general. The Committee notes that in its report the Government informs that the Department of Human Resource Management and Development (DHRMD) has not received any queries on discrimination on the ground of HIV status. The Committee notes that, despite impressive progress the country has made in controlling its HIV epidemic in the last decade, Malawi still has one of the highest HIV prevalence rates and that HIV affects women disproportionately. According to the Joint United Nations Programme on HIV/AIDS (UNAIDS) country factsheet on Malawi, in 2020 the HIV prevalence rate in the adult population (15-49 years old) was estimated at 8.1 per cent (10.9 per cent for women). The Committee asks the Government to step up its efforts to raise awareness about the HIV and AIDS (Prevention and Management) Act of 2018 among workers and employers and their respective organizations, law enforcement officials as well as the public in general. It also asks the Government to provide information on any cases of discrimination based on real or perceived HIV status dealt with by the labour inspection services or the courts.

Article 2. National equality policy. Promoting equality and inclusiveness in the public service. In its previous observation, the Committee asked the Government: (1) to take the necessary steps to implement the strategy on equality and diversity in the Public Service Management Policy, and particularly to adopt legislative, executive and administrative measures to that end; (2) to effectively promote equal opportunities and treatment for all, at all levels in the public service, through training and awareness-raising; and (3) to provide specific information on the results achieved through this policy with respect to the employment of women, persons with disabilities and persons from vulnerable or marginalized groups, and to report any obstacles encountered. The Committee notes the Government’s indication that the DHRMD has carried out training activities on gender equality and facilitates the establishment of gender focal points in all ministries, departments and agencies. The Government also informs that relevant legislation, such as the Public Service Act, is being reviewed in light of the Gender Equality Act (GEA) in collaboration with the national Human Rights Commission. The Committee asks the Government to provide information on the outcome of the review of the relevant legislation on the public sector with a view to enhancing equality of opportunity and treatment in employment and the actions taken in this respect. In the absence of a response to its earlier request, the Committee also asks the Government to provide information on the steps taken to implement the strategy on equality and diversity in the Public Service Management Policy, including: (i) legislative, executive and administrative measures to promote equal opportunities and treatment for all at all levels in the public service; and (ii) on the results achieved, particularly as regards the employment of women, persons with disabilities and persons from vulnerable or marginalized groups.

Promoting gender equality. National Gender Policy of 2015 and Gender Equality Act of 2013. In its previous observation, the Committee asked the Government to: (1) continue disseminating information to raise awareness of the GEA and to intensify its efforts in this regard among workers, employers and their organizations; (2) take steps to adopt the rules and regulations pursuant to the GEA and to review the provisions on gender equality in other legislation in light of the GEA; (3) provide information on the Implementing and Monitoring Plan for the GEA and any measure adopted to promote equal employment opportunities and benefits for women and men, in both the formal and informal economy, pursuant to the National Gender Policy. The Committee notes the Government’s reference to legal awareness workshops that are regularly conducted by the Ministry of Gender, the Malawi Law Commission, the Malawi Human Rights Commission and various civil society organizations, and involve judicial officers, lawyers and law enforcement officials. The Committee also notes from the Government’s report under the national-level review of implementation of the Beijing Declaration and Platform for Action, 1995 (Beijing +25 national report) that it considers that there is a need to promote work-family conciliation, including through the State’s support for childcare. While noting this information, the Committee asks the Government to provide information on the results achieved under the National Gender Equality Policy with regard to the advancement of equality of opportunity and treatment for women in employment and occupation. It encourages the Government to consider undertaking an evaluation exercise, in collaboration with the social partners, with a view to identifying the progress made, the obstacles encountered and the adjustments required in order to achieve the objectives of the Convention. The Committee also reiterates its request for information on the implementation of the Gender Equality Act, including the adoption of relevant regulations and the review of the provisions on gender equality in other pieces of legislation. The Committee also asks the Government to continue to provide information on awareness-raising campaigns conducted on the principles of the Convention and the provisions of the Gender Equality Act, including information on the campaigns benefiting the organizations of workers and employers or being organized in collaboration with them. The Committee also encourages the Government to adopt measures aimed at promoting the reconciliation of work and family responsibilities and to provide information in this respect.

Articles 2 and 5. Gender Equality. Public Service. Affirmative action. The Committee recalls that pursuant to section 11 of the GEA, an appointing or recruiting authority in the public service shall appoint no less than 40 per cent and no more than 60 per cent of either sex in any department in the public service, with some exceptions. In that regard, the Government had indicated that the implementation of section 11 “may pose some challenges” due to the exceptions in section 11(2) providing for circumstances where the quota may not be applied and the possibility that some people might take advantage of this exception. The Committee also recalls that in its previous comments, it asked the Government: (1) to provide information on the realization of the enrolment quota provided for in section 11 of the GEA, including in the context of the “Women inclusion in Decision Making Project”, and the results achieved, as well as information on any steps taken to review the exceptions granted under this section; (2) to indicate the follow-up given to the recommendations on gender equality made jointly by the Parliamentary Appointments Committee (PAC) and the Public Service Commission (PSC); and (3) to provide specific information on the steps taken to promote the access of women to a wider range of jobs in the public service and to more senior level jobs. The Committee notes the Government’s indication that it conducted leadership development sessions for officers at Grades I to G with a view to building women’s capacity for decision-making positions. Moreover, government recruitment agencies continue to encourage women and girls to apply for jobs which are traditionally performed by men and boys. Nevertheless, the Government notes that the presence of women in decision-making positions remains limited, although there has been an increase in the number of women in the Parliament and in local government authorities, compared to 2014. Concerning the public sector more generally, according to 2019 statistics, women accounted for 33 per cent of the positions at the head of public service level, and 8 per cent at the deputy head level. The Committee asks the Government to continue to provide information on the measures adopted to promote women’s access to senior positions and a broader range of jobs in the public sector, the obstacles encountered and the results achieved. Please also indicate whether any steps have been taken to review the exceptions granted under section 11(2) of the Gender Equality Act.

Promoting equal access to education and vocational training for girls and boys and for women and men. Affirmative action. In its previous comments, the Committee asked the Government: (1) to take action to meet the enrolment quota provided for in section 16 of the GEA and to review section 18(1)(c) – which requires that the “special needs of female students by incorporating life skills, including sex education” in the curricula be addressed – in order to cover students of both sexes; (2) to continue its efforts to enrol girls at school and to ensure that they continue in education and to enable their return to school; (3) to take steps to encourage girls and women to take subjects that lead to a wide range of jobs traditionally occupied by boys and men and to high-level jobs and those with career prospects, including through vocational guidance and increased sensitization of all students to gender stereotypes and bias. The Committee notes the Government’s information on the financial support provided to poor and disadvantaged female students in secondary school as well as the construction of girls’ hostels to facilitate girls’ school attendance. The Government also refers to the implementation of the Re-Admission Policy that allows pregnant students to return to school after giving birth. Furthermore, the Government states that the National Council for Higher Education (NCHE), when selecting students for various public universities, utilize affirmative action to ensure that the number of women with university education increases. In addition, the Committee notes from the Government’s report to the United Nations Universal Periodic Review that under the National Strategy for Adolescent Girls and Young Women (2018-2022) measures are envisaged to promote girls’ access to education, including by tackling child marriage (A/HRC/WG.6/36/MWI/1, 3 March 2020, paragraph 33). Welcoming the measures implemented by the Government, the Committee asks it to continue to provide information on the steps taken to promote girls’ enrolment, attendance and retention in school and facilitate their return where they drop-out, and the results achieved. The Committee also asks the Government to provide information on the measures adopted to encourage girls and women to take subjects that lead to a wide range of jobs traditionally occupied by boys and men, and to high-level jobs and those with career prospects. The Committee also again asks the Government to review section 18(1)(c) of the Gender Equality Act and provide information on the steps taken in this respect.

Articles 2 and 3. Equality of opportunity and treatment irrespective of social origin. Rural workers. The Committee notes from the Government’s report to the African Commission on Human and Peoples’ Rights (ACHPR) that the Land Act and the Customary Land Act were passed in 2016 with a view to promoting the registration of land, including customary land. It also notes that the Customary Land Act provides for the establishment of Land Committees that are responsible for the management of all customary land in a Traditional Land Management Area. The committees are comprised of a Group Village Headman who shall be the chairperson and six other persons elected by and from within the community, at least three of whom shall be women (section 5). The Committee welcomes these initiatives and recalls that promoting and ensuring access without discrimination to material goods and services required to carry out an occupation, such as access to land, credit and resources, should be part of the objectives of a national policy on equality under Article 2 of the Convention (2012 General Survey on the fundamental Conventions, paragraph 756). The Committee asks the Government to provide information on the application of the Land Act and the Customary Land Act, and their impact on promoting equality of opportunity and treatment in occupation for men and women rural workers. The Committee also asks the Government to provide information on the other measures taken or envisaged to promote the principle of the Convention in rural areas, including measures designed to promote access without discrimination to relevant skills development, market facilities and productive resources and inputs, including technology and financial services, and access to information, facilities and technical assistance, as appropriate.

Enforcement. Previously, the Committee asked the Government: (1) to provide information on any rules adopted regarding the proceedings under the GEA as well as the number, nature, and outcome of any complaints dealt with by the labour inspection services, the courts, or the Human Rights Commission, pursuant to the Act; and (2) to continue to provide information on the steps taken to encourage reporting of discrimination cases and to provide training to enforcement officials and magistrates regarding the meaning and implications of the principle of equality of opportunity and treatment in employment and occupation with respect to all the grounds enumerated in the Convention (race, colour, sex, political opinion, religion, national extraction and social origin). The Committee notes the Government’s indication that the Human Rights Commission addressed a number of cases concerning the application of the GEA in 2019 of which the majority (55.6 per cent) were filed by men and some were lodged on behalf of women. The Government confirms that the interplay between cultural, economic and social determinants plays a major role in the fulfilment of human rights, particularly due to the fact that women depend on their male relatives (for example uncles, husbands, and even sons) to access the formal justice system. Noting this information, the Committee encourages the Government to take action to facilitate women’s access to enforcement mechanisms and to continue to provide information on cases of discrimination in employment and occupation addressed by labour inspection services, the courts, or the Human Rights Commission. The Committee also asks the Government to indicate which measures, including training and capacity-building, have been adopted to enhance the capacity of enforcement officials and magistrates to identity and address violations of the principle of equality of opportunity and treatment in employment and occupation in respect of all grounds of discrimination enumerated in Article 1(1)(a) of the Convention.

Statistics. The Committee notes the statistical information provided by the Government on the distribution of men and women in various sectors and occupations and refers to its comments under the Equal Remuneration Convention, 1951 (No. 100).

[The Government is asked to supply full particulars to the Conference at its 110th Session and to reply in full to the present comments in 2022.]

Malawi (ratification: 1965)

The Committee notes the observations of the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) received on 30 August 2021 concerning women workers on tea plantations and in agriculture.

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. In its previous observation, the Committee asked the Government to: (1) amend section 6(1) of the Gender Equality Act (GEA) of 2013 to ensure that the term “reasonable person” in the definition of sexual harassment no longer refers to the harasser, but to an outside person; (2) provide information on the measures adopted pursuant to section 7 of the GEA to ensure that employers have developed and are implementing appropriate policies and procedures aimed at eliminating sexual harassment in the workplace; and (3) take steps to address sexual harassment in the public service, including the provision of adequate reporting procedures, remedies and sanctions. In addition, the Committee encouraged the Government to consider conducting awareness-raising campaigns, in cooperation with workers’ and employers’ organizations, focusing specifically on sexual harassment in employment and occupation. The Committee notes that in its report the Government indicates that the Department of Human Resource Management and Development (DHRMD), in partnership with Ministry of Gender, is in the process of developing a Sexual Harassment Workplace Policy pursuant to section 7 of the GEA. In addition, the DHRMD has conducted awareness-raising campaigns on sexual harassment in some ministries, departments and agencies, such as agriculture, defence, competition and fair trade, and district councils. The Committee also notes from the submissions of the Working Group on the Universal Periodic Review (UPR) carried out under the auspices of the United Nations, that the National Human Rights Commission stated that violence against women continues to resurface in the county (A/HRC/WG.6/36/MWI/3, 28 February 2020, paragraph 6).

The Committee notes from the observations of the IUF that, on 6 April 2021, the National Human Rights Commission announced that it would embark on an exercise to audit all public and private institutions on their compliance with the provisions of the GEA and ensure that they have workplace policies on sexual harassment. The IUF also states that, in December 2019, a London-based law firm filed a case on behalf of 36 Malawian women alleging that they had been subjected to gender-based violence and harassment (including rape and sexual harassment) while working on tea estates in Mulanje and Thyolo districts. In March 2021, the same law firm filed another complaint in London’s High Court concerning 22 instances of sexual harassment, 13 instances of sexual assault, 11 instances of coerced sexual relations and 10 instances of rape on tea plantations and macadamia nut orchards in southern Malawi. These alleged cases happened between 2014 and 2019. The IUF states that the Malawian tea industry is the country’s biggest private sector employer, employing 50,000 workers, of whom 30 per cent are women, who are mainly employed as seasonal workers. It emphasizes that the fact that the workers’ complaint was made public and dealt with through a law firm based in the United Kingdom indicates that the established procedures in Malawi at the local and national levels are inadequate for victims of gender-based violence in the workplace who are seeking to achieve justice and to ensure an end to sexual harassment on tea estates.

The IUF refers to a meeting convened on 7 April 2021 with its affiliates in Malawi to discuss these cases. Subsequently, an IUF affiliate, the Plantations and Agricultural Workers Union (PAWU), met the Tea Association of Malawi Limited (TAML) and agreed to investigate cases of sexual harassment on tea plantations. Eleven managers and supervisors who were found to be involved in sexual harassment cases were dismissed. The IUF also states that its affiliates are currently working on awareness-raising activities to tackle sexual harassment on tea plantations. According to the IUF, the existing legal framework, as well as current initiatives that aim to stop gender-based violence, are not sufficient to eradicate the systemic problem of gender-based violence and sexual harassment on tea plantations. The IUF reports that male supervisors abuse their position of power (for example, hiring rights, allocation of tasks) and use it to demand sexual favours from women and/or to commit violence, especially on women employed under seasonal, and hence precarious, contracts. The IUF believes that women workers in agriculture and other sectors are also subject to sexual harassment. Noting with serious concern the gravity of these allegations, the Committee requests the Government to provide its comments in this respect and expresses the firm hope that the Government will consider requesting technical assistance to address the matters raised by the IUF. The Committee urges the Government to: (i) undertake, in cooperation with the organizations of workers and employers, an evaluation of the existing legal framework on sexual harassment and, in particular, to amend the definition of sexual harassment in section 6(1) of the Gender Equality Act of 2013 to explicitly include hostile work environment harassment; (ii) identify the initiatives taken to date to prevent and address sexual harassment in the public and private sectors, and the procedures and remedies available to victims, with a view to identifying existing gaps and risk factors and designing effective interventions to strengthen the protection of women workers against sexual harassment; (iii) provide information on the results of the evaluation and the actions envisaged as a follow-up; (iv) increase the capacity of the competent authorities, including labour inspectors, to prevent, identify and address cases of sexual harassment in employment and occupation, including on tea plantations; (v) continue undertaking awareness-raising campaigns in collaboration with the social partners; (vi) provide information on the adoption of the Sexual Harassment Workplace Policy pursuant to section 7 of the Gender Equality Act and its implementation; and (vii) consider amending section 6(1) of the Gender Equality Act to ensure that the term “reasonable person” in the definition of sexual harassment no longer refers to the harasser, but to an outside person.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to supply full particulars to the Conference at its 110th Session and to reply in full to the present comments in 2022.]

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on labour inspection and labour administration, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection), 129 (labour inspection in agriculture) and 150 (labour administration) together.

A. Labour inspection

Articles 4, 6, 7, 10 and 11 of the Convention No. 81 and Articles 7, 8, 9, 14 and 15 of the Convention No. 129. Establishment of a central authority entrusted with control and supervisory powers in the labour inspection system. Adequate human and material resources. The Committee previously requested the Government to take measures to secure an inspection system operating under the supervision and control of a central authority that is provided with adequate human resources in terms of both numbers and skills and the material conditions necessary for the exercise of its functions. The Committee notes the Government’s response in its report that in 2016, 22 labour inspectors were recruited and have been deployed to various district labour offices in the country. The Committee also notes the Government’s indication in its report on Convention No. 150 that trainings have been provided to newly recruited and existing staff on labour inspection issues. It further notes that the Government is seeking technical assistance from the ILO with a view to providing the newly recruited labour inspectors with basic labour inspection training. In addition, it notes that some staff underwent training on the ILO approach to strategic compliance model planning. The Committee requests the Government to provide information on the structure of the labour inspection system, including an organizational chart, if available, and to provide information on the status and conditions of services of labour inspectors including recruitment procedures, qualifications for the positions, and status in comparison to other civil servants. The Committee further encourages the Government to pursue its efforts towards strategic planning and ensuring that the labour inspectorate has the human and material resources necessary for the effective performance of its duties. It requests the Government to provide information on measures taken in this regard and to provide information on the total number of labour inspectors, their distribution across districts, and the training provided to them, including dates and subjects covered for each training session and number of inspectors attending each session. The Committee notes the Government’s request for technical assistance from the Office and firmly hopes that this assistance will be provided in the near future.

Articles 14, 20 and 21 of the Convention No. 81 and Articles 19, 26 and 27 of the Convention No. 129. Annual report on labour inspection activities notification of occupational accidents and diseases to the labour inspection services. The Committee notes the Government’s indication in response to its previous request concerning the inclusion of information on the agricultural sector in the annual labour inspection report, that the general annual labour report is published without specifying inspections undertaken in the agricultural sector. The Government indicates that statistics on agricultural undertakings liable to inspection and on the number of workers in the sector are not up to date and that there are no reliable statistics on the number of inspections carried out in agriculture. The Committee also takes due note of the statistical information provided by the Government, in its report related to occupational accidents and occupational safety and health violations, indicating that the majority of accidents in the 2016–2017 and 2017–2018 financial years, occurred in the manufacturing industry and the tobacco farming sector. The Government also indicates that only one suspected occupational disease in the tobacco industry was reported to the Directorate of Occupational Safety and Health within the 2017/2018 financial year. Noting the Government’s indication that an annual labour inspection report is published, the Committee requests the Government to ensure that the report is transmitted to the ILO, in accordance with Articles 20 of Convention No. 81 and 26 of Convention No. 129, The Committee encourages the Government to pursue its efforts to ensure that future annual inspection reports contain complete information on all the subjects listed in Articles 21 of Convention No. 81 and 27 of Convention No. 129, including the number of inspections carried out in the agricultural sector. It also encourages the Government to provide information on any measures taken or envisaged to improve the notification of cases of occupational diseases to the labour inspectorate, in accordance with Articles 14 of Convention No. 81 and 19 of Convention No. 129.

Issues specifically concerning labour inspection in agriculture

Articles 3, 6, 9 and 21 of Convention No. 129. Functions of the labour inspection system in agriculture, training of labour inspectors in agriculture and inspection visits. In its previous comment, the Committee noted that the agricultural sector provided a livelihood to 80 per cent of the population. The Committee notes the Government’s indication that there are no reliable statistics on the number of inspections carried out in agriculture and that in the recent past, there have been no violations detected and no penalties imposed. It notes, however, the Government’s indication that from 2016 to 2018, the agricultural sector (tobacco) reported the third most occupational accidents, after manufacturing and construction. Noting the significant proportion of workers engaged in the agricultural sector, the Committee requests the Government to provide further information on the measures taken to strengthen the labour inspection system in agriculture, with particular attention to the tobacco sector. It requests the Government to provide information on the provision of adequate training for labour inspectors for the performance of their duties in the agricultural sector as well as on the measures taken to ensure that inspections take place in the agricultural sector as often and as thoroughly as is necessary to ensure the effective application of the relevant legislation.

B. Labour administration

Labour Administration Convention, 1978 (No. 150)

Articles 1, 4, 5 and 6 of the Convention. Organization, functioning of the labour administration system and preparation of a national labour policy. The Committee previously requested information on the progress made in the adoption of the national employment and labour policy. In this respect, the Committee notes with interest the adoption, in 2017, of the National Employment and Labour Policy. The Committee notes that the policy was developed in consultation with the social partners and that it aims to provide a framework to promote productive and decent employment in the economy and increase compliance with labour standards by employers, investors and workers. It focuses on ten priority areas. The Committee further notes the organizational chart of the labour administration system provided by the Government with its report, in response to the Committee’s previous request. Lastly, it notes the Government’s indication, in response to the Committee’s previous request, that a functional review of the Ministry of Labour has yet to be done and that it will inform the Office accordingly. The Committee requests the Government to continue to provide information on any measures taken or envisaged with a view to undertaking a functional review of the Ministry of Labour and to provide information on the implementation of the National Employment and Labour Policy

Article 5. Consultation, cooperation and tripartite negotiation in the context of the labour administration system. The Committee notes the information provided by the Government concerning consultations with the social partners related to the National Employment and Labour Policy. The Committee also notes the information provided by the Government in its report on the application of Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), on tripartite consultations on international labour standards. In this respect, it refers to its observations on the application of Convention No. 144.

Article 10. Human resources and material means necessary for the operation of the labour administration system. Following its previous comment, the Committee notes the Government’s indication that the labour administration is present in the 29 districts of the country, which facilitates the population’s access to labour administration services. The Committee notes that, for the 2018/2019 financial years, two training courses varying from 3 to 5 days were provided to officers of the labour administration with technical and financial assistance from the ILO Country Office and the Decent Work Team in Pretoria. In this regard, it notes that trainings have also been provided to newly recruited and existing staff of the labour administration on the following areas: child labour, conflict management and settlement of labour complaints and disputes, labour inspection, management of public employment services and overview of labour laws. The Committee further notes the detailed information provided concerning the financial resources available to the labour administration staff for the performance of their duties during the 2017/2018 and 2018/2019 financial years. The Committee requests the Government to provide information on the number of staff exercising functions in the area of labour administration and to provide further information on the material means currently available to labour administration staff for the performance of their duties.

The Committee refers to its previous comments, initially made in 2014, in which it noted that section 28(3) of the Employment Act No. 6 of 2000 regards specific term or task contracts as indefinite contracts if they are used to fill a permanent position. The Committee once again expresses its trust that the Government will be mindful of each of the provisions of the Convention, to ensure their full and effective application, when reviewing the Employment Act, and requests the Government to provide a copy of the amended Act to the Office as soon as it is adopted. The Committee once again requests the Government to include copies of decisions rendered by the Industrial Relations Court interpreting section 28(3) of the Employment Act more specifically with regard to the protection against abusive recourse to fixed-term contracts (Article 2(3) of the Convention).

Article 2 of the Convention. Workers excluded from the scope of the Convention. The Committee previously noted that members of the armed forces, prison service and police are excluded from coverage under the Employment Act, except when they are employed in a civil capacity. The Committee recalls the Government’s indication in June 2011 that procedures regarding termination of employment with regard to these specific categories of workers were stipulated in the Standing Orders. Noting that the Government has not responded to its previous request in respect of the application of Article 2, the Committee once again requests the Government to provide copies of the Standing Orders to enable it to determine whether the protection provided is at least equivalent to that afforded by the Convention to the above categories of civil servants.

Article 12. Severance allowance and other income protection. In its previous comments, the Committee requested the Government to provide information on the effective application of the Pension Act No. 6 of 2011. The Government previously reported that, pursuant to the Pension Act No. 6 of 2011, severance pay for the period prior to 1 June 2011 is payable regardless of the grounds of termination. The Committee notes in this regard that section 91(1) of the Pension Act provides that “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”. Moreover, section 91(5) of the Pension Act provides that the “severance due entitlement shall, upon termination of an employment contract between the employer and employee, become immediately transferable to a pension fund of the employee’s choice”. The Committee recalls that under Article 12(1) of the Convention, a worker whose employment has been terminated shall be entitled, in accordance with national law and practice, to a severance allowance or other separation benefits (paragraph 1(a)); or benefits from unemployment insurance or assistance or other forms of social security (paragraph 1(b)); or a combination of such allowance and benefits (paragraph 1(c)). The Committee notes with interest the court decisions provided by the Government in relation to the application of Article 12 of the Convention. In this respect, it notes that the Industrial Relations Court confirmed that the severance allowance is paid for all the years of continuous employment including the period before coming into effect of the Pension Act of 2011 irrespective of the payments to the Pension Fund. The Court explained that when severance due entitlement is transferred to the Pension Fund, it becomes a benefit payable as a pension benefit upon retirement. The Committee invites the Government to continue providing information on the application of the Pension Act, both in law and in practice, in relation to Article 12, as well as information on the manner in which the issue of overlapping periods and “double payment” (as referred to in Griffin Mtonga vs ARET – IRC 190/2013 and Hotel Food Processing /& Catering Workers Union vs Bakhresa Grain Milling Company – IRC 408/2012) is curbed in law and practice.

Article 12(3). Loss of entitlement to severance payment in case of termination for serious misconduct. The Government previously indicated that the statutory grounds for losing one’s entitlement to severance allowance in section 35(6), the ground of being “fairly dismissed for a reason related to his conduct”, should be read in conjunction with sections 57–61 of the Employment Act, which set out the substantive and procedural requirements of a “fair” dismissal. The Government reported in June 2011 that section 59(1) of the Act lists five grounds for summary dismissal and that each of these five grounds justifies the loss of severance allowance. Noting that the Government has not provided the requested copies of judicial decisions of labour courts interpreting section 35(6) of the Employment Act, the Committee reiterates its request for copies of decisions in which the labour court examined section 35(6) in the context of the loss of severance allowance being limited to cases of serious misconduct as contemplated in section 59(1) of the Act.

The Committee notes that section 35(A) Amendment of Employment Act 2010 obliges the employer to pay gratuity to the employees exempted under the Pension Act, in case of termination of employment, or death. The Commission invites the Government to continue sharing copies of the decisions involving payment of gratuity in cases of termination due to serious misconduct.

Articles 13 and 14. Termination of employment for economic, technological, structural or similar reasons. The Government previously indicated that all employers comply with administrative statements and policies on retrenchments; and retrenchment packages are examined before they are implemented. It had also indicated that consultations with the social partners were at an advanced stage to incorporate procedures of collective dismissals in the amended Employment Act. The Committee notes the judgment of the High Court in Case No. MZ40 of 2010 (Kaira v. Malawi Telecommunications Limited) in which the Court referred to Article 13 of the Convention and indicated that, although not clearly provided in section 57 of the Employment Act, Convention No. 158, which Malawi ratified, obliges the employer to fully engage the employee in consultations as regards the impending restructuring.

The Committee notes the ruling of the Malawi Supreme Court of Appeal in First Merchant Bank Limited vs Eisenhower Mkaka and 13 Others, in which it concluded that the employer had no obligation to consult the employees, or to otherwise accord them a right to be heard when terminating their employments based on operational requirements, including redundancy or retrenchment. The Committee notes the Court’s decision to overrule the ruling of the Supreme Court of Appeal in the MTL vs. Makande case [2008] MLR 3, which held that the requirements of Article 14 of ILO Convention 158 are directly applicable in Malawi by virtue of article 211(2) of the Constitution, as it was made per incuriam.

In its 1995 General Survey, Protection against unjustified dismissal, paragraph 278, the Committee recalls that a State which ratifies the Convention undertakes to comply the procedures of Articles 13 and 14, which encompass a number of objectives (mainly to avert or minimize terminations of employment and mitigate their consequences) within the framework of certain procedures, namely information and consultation of workers (Article 13) and notification to the authorities (Article 14). Paragraph 283 indicates that consultation provides an opportunity for an exchange of views and the establishment of a dialogue which can only be beneficial for both the workers and the employer, by protecting employment as far as possible and hence ensuring harmonious labour relations and a social climate which is propitious to the continuation of the employer’s activities. The Committee again stresses the importance of operating an appropriate framework for collective dismissals in line with the Convention. It once again asks the Government to report on the progress being made to amend the Employment Act to incorporate procedures of collective dismissals and include copies of recent court decisions addressing terminations for reasons of economic, technological, structural or similar reasons.

Part V of the report form. Application of the Convention in practice. The Committee once again invites the Government to provide information on the manner in which the Convention is applied in practice, including providing available statistics on the activities of the appellate bodies relevant to the application of the Convention, and on the number of terminations carried out for economic or similar reasons.

Articles 2 and 3 of the Convention. National policy for the vocational rehabilitation and employment of persons with disabilities. The Committee notes with interest the adoption in 2018 of the National Disability Mainstreaming Strategy and Implementation Plan (NDMS) covering the period 2018–23. The NDMS outlines key areas to promote the inclusion of persons with disabilities, such as access to education, means of livelihood, employment and social inclusion. It includes among is main objectives the reduction of all forms of disability-related discrimination in the labour market, including through removing barriers to access to financial resources and social protection arrangements. In this regard, the NDMS envisages the adoption of measures aimed in particular at: promoting equity in selection, training and employment processes and procedures for persons with disabilities; establishing a 1 per cent employment quota of persons with disabilities and providing tax incentives to employers who meet this quota; developing and monitoring the implementation of measures for reasonable accommodation in all training and employment processes and providing funds to facilitate reasonable accommodation in workplaces; and providing advisory and support services to employees with disabilities through job support programmes undertaken in collaboration with both the public and the private sectors. The NDMS also provides for the development and implementation of an integrated labour market information management system (LMIS) to compile and analyse statistical data on the employment and retention of persons with disabilities in the open labour market, as well as developing and maintaining a database of profiles, job prospects and job matching of persons with disabilities seeking employment. With respect to access to education, the NDMS contemplates the adoption of measures to promote access to equitable, relevant and quality education for persons with disabilities, such as establishing model inclusive primary and secondary schools in all education divisions; conducting research to establish levels of implementation of inclusive education, practices, challenges and recommend possible solutions; and establishing education support systems for persons with disabilities at secondary and tertiary levels. The Committee also notes that, according to the NDMS, a number of national strategies and policies include the empowerment of persons with disabilities among its cross-cutting objectives, such as the medium-term Malawi Growth and Development Strategy III (MGDSIII) for the period 2017–22, and the National Education Sector Plan (NESP) 2017–20. The Government also refers to the implementation of its National Employment and Labour Policy (NELP). It indicates that, once implementation of the NELP is at a more advanced stage, it will provide information on the impact on measures taken under the NELP, with special reference to vocational rehabilitation, guidance services and the employment of persons with disabilities on the open labour market. The Committee requests the Government to provide detailed updated information on the status and impact of the measures adopted to promote employment opportunities for persons with disabilities in the open labour market in both the public and private sectors, including those adopted in the framework of the National Disability Mainstreaming Strategy and Implementation Plan (NDMS), the Malawi Growth and Development Strategy III (MGDSIII), and the National Employment and Labour Policy (NELP). It also requests the Government to provide detailed updated information on the practical application of the Convention, including statistical data, disaggregated by age and sex, as well as extracts from reports, studies and inquiries concerning the matters covered by the Convention.

Article 4. Effective equality of opportunities and treatment between men and women workers with disabilities, and between workers with disabilities and other workers. The Committee notes that, according to the NDMS, there are very high levels of poverty among persons with disabilities in Malawi due to exclusion. In particular, the NDMS emphasizes that women with disabilities rank significantly lower than men with disabilities as well as women without disabilities in terms of access to education, employment and earnings. Against this background, the NDMS contemplates the adoption of measures with a view to promoting entrepreneurship and the involvement of women with disabilities in business groups, including providing training for women with disabilities in basic business skills, promoting their inclusion in cooperatives, and facilitating the provision of micro-finance, loans and saving schemes to women with disabilities. The Committee requests the Government to provide detailed information on the nature and impact of measures adopted or envisaged to ensure effective equality of opportunities and treatment in employment and occupation between women and men with disabilities, and between workers in general and workers with disabilities. The Government is also requested to provide updated information on the impact of these measures on the employment of men and women with disabilities on the open labour market, including statistics disaggregated by sex, age and economic sector.

Article 5. Consultation with the social partners and organizations of and for persons with disabilities. The Committee notes that the NDMS was developed with the active participation of a broad range of actors, including relevant sectoral government ministries and departments, the Norwegian Association of the Disabled (NAD), CBM International (previously known as the Christian Blind Mission), the Federation of Disability Organisations in Malawi (FEDOMA), the Malawi Council for the Handicapped (MACOHA), the Africa Disability Alliance (ADA), and the Malawi Human Rights Commission (MHRC). The Committee further notes that the NDMS includes among its main strategies strengthening the participation of men and women with disabilities at all levels in decision making and development. The Committee requests the Government to provide updated detailed information on the content and outcome of the consultations held within the social partners and with organizations of persons with disabilities on the implementation of vocational rehabilitation and employment measures for persons with disabilities.

Articles 7 and 8. Services accessible to persons with disabilities, including in rural and remote areas. The Committee requests the Government to provide information on vocational rehabilitation and employment services, including vocational guidance and training and employment placement services, made available to persons with disabilities in rural areas and remote communities, as well as information on the impact of these services.

Article 9. Training of suitably qualified staff. The Committee welcomes the provisions in the NDMS which envisage the adoption of measures to train vocational training staff in disability-inclusive vocational training and management. The Committee requests the Government to provide updated information on the impact of the measures taken with a view to ensuring the training and availability of advisers specialized in rehabilitation and of other qualified staff responsible for ensuring the provision of vocational guidance and training, and the placement and employment of persons with disabilities in the open labour market.

In the context of the global COVID-19 pandemic, the Committee recalls the broad guidance provided by international labour standards. In this regard, the Committee draws the Government’s attention to the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205), which provides guidance for the development and implementation of measures in areas such as education, vocational training and retraining, and employment, that effectively respond to the profound socioeconomic effects of the pandemic. For instance, Paragraph 7(h) of Recommendation No. 205, provides that, in taking measures on employment and decent work in response to crisis situations, member States should take into account the need to pay special attention to population groups and individuals who have been made particularly vulnerable by the crisis, including, but not limited to, persons with disabilities. The Committee invites the Government to provide in its next report updated information on the impacts of the pandemic on the implementation of vocational rehabilitation and employment policies and programmes for persons with disabilities and measures taken to address these.

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on occupational safety and health (OSH), the Committee considers it appropriate to examine Conventions Nos 155 (OSH), 184 (safety and health in agriculture) and 187 (promotional framework for OSH) together.

The Committee notes that the first reports of the Government for Conventions Nos 155, 184 and 187 have not been received.

The Committee notes the observations of the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF), received on 30 August 2021, concerning Convention No. 184. The Committee considers it appropriate to examine the content of the observations under Conventions Nos 155 and 187 as well.

Occupational Health and Safety Convention, 1981 (No. 155) and Safety and Health in Agriculture Convention, 2001 (No. 184)

Article 16(1) of Convention No. 155, Article 3(2) of Convention No. 187 and Article 18 of Convention No. 184. Employers’ obligation to ensure that workplaces are without risks to health and safety. Promotion of a safe and healthy working environment. OSH measures for women workers in agricultural undertakings. The Committee notes that, according to the observations of the IUF, a number of women working in tea plantations and macadamia nuts orchards allege that they have been subjected to gender-based violence, including rape and sexual harassment. In particular, according to the IUF, women employed under seasonal, hence precarious, contracts, are forced to submit to the demands for sexual favours of supervisors for fear of losing their employment. In light of the above, the IUF requests that the Committee invites the Government of Malawi to accept ILO technical cooperation in order to address the issue of gender-based violence and harassment in the Malawi tea plantations. The Committee recalls that Article 16(1) of Convention No. 155 provides that employers shall be required to ensure that the workplaces under their control are safe and without risk to health. In addition, Article 3(2) of Convention No. 187 requires the promotion and advancement of the right of workers to a safe and healthy working environment. The Committee also recalls that, according to Article 18 of Convention No. 184, measures shall be taken to ensure that the special needs of women agricultural workers are taken into account in relation to their reproductive health. Noting with serious concern the gravity of these allegations, the Committee requests the Government to provide its comments in this respect. The Committee expresses its firm hope that the Government will consider requesting technical assistance to address the matters raised by the IUF. The Commission trusts that the requested technical assistance will be carried out with a multidisciplinary approach in order to address these issues, from the perspective of the implementation of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), as well.

[The Government is asked to reply in full to the present comments in 2022.]

Malawi (ratification: 1965)

Statistical data on migration. Recalling that appropriate data and statistics are crucial in determining the nature of labour migration and inequalities of treatment faced by migrant workers, to set priorities and design measures, and to evaluate their impact (2016 General Survey, Promoting fair migration, para. 648), the Committee requests the Government to provide statistical data disaggregated by sex and mobility on the number of migrant workers in Malawi and the number of workers from Malawi seeking employment abroad, in particular in the Southern African Development Community.

Article 1(a) of the Convention. Information on national policies, laws and regulations on migration. In follow up to its previous request for information in this regard, the Committee takes note of the Government’s reiterated engagement towards the formulation of a migration policy. The Committee also notes that in its report, the Government indicates that a number of recent developments aiming at enhancing the protection of migrant workers, especially Malawians nationals who emigrate, have taken place. These developments include: (1) the compilation of a National Migration Profile, (2) the enactment in 2015 of the Trafficking in Person Act, (3) the formulation of a National Diaspora Engagement Policy, (4) the monitoring of the welfare of refugees through a Committee chaired by the Ministry of Homeland Security, and (5) the launch of a Project on voluntary return for migrant workers in irregular status in South Africa, supported by the International Organization for Migration (IOM). The Committee requests the Government to provide information on the steps taken towards the adoption of a migration policy. It further recalls that the Government may avail itself of the technical assistance of the ILO to facilitate this process.

Articles 1(c) and 10. Special arrangements and bilateral agreements. In response to the Committee’s previous request for information regarding the conclusion of such agreements, the Government indicates that a bilateral labour agreement was signed with Qatar. In this regard, the Committee refers to the ILO General Principles and Operational Guidelines for Fair Recruitment and Definition of Recruitment Fees and Related Costs inviting Members to make the international agreements on labour migration publicly available.

Enforcement. In its previous comment, the Committee requested the Government to provide information on any practical measures taken to ensure the effective application of the Convention, including measures designed to enhance the capacity of judges and labour inspectors to identify and address issues such as equality of treatment. In its report, the Government indicates that a number of court decisions have been adopted regarding the issue of trafficking in persons for labour exploitation. While taking note of this indication, the Committee requests the Government to communicate information on the: (i) number of cases detected by the labour inspectorate in relation with the employment of migrant workers (on the basis of the Trafficking in persons Act or the Employment Act), (ii) the number of such cases dealt with in Court, and (iii) the outcome of the proceedings (penalties and sanction imposed if any).

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on labour inspection and labour administration, the Committee considers it appropriate to examine Conventions Nos 81 (labour inspection), 129 (labour inspection in agriculture) and 150 (labour administration) together.

A. Labour Inspection

Articles 4, 6, 7, 10 and 11 of the Convention No. 81 and Articles 7, 8, 9, 14 and 15 of the Convention No. 129. Establishment of a central authority entrusted with control and supervisory powers in the labour inspection system. Adequate human and material resources. The Committee previously requested the Government to take measures to secure an inspection system operating under the supervision and control of a central authority that is provided with adequate human resources in terms of both numbers and skills and the material conditions necessary for the exercise of its functions. The Committee notes the Government’s response in its report that in 2016, 22 labour inspectors were recruited and have been deployed to various district labour offices in the country. The Committee also notes the Government’s indication in its report on Convention No. 150 that trainings have been provided to newly recruited and existing staff on labour inspection issues. It further notes that the Government is seeking technical assistance from the ILO with a view to providing the newly recruited labour inspectors with basic labour inspection training. In addition, it notes that some staff underwent training on the ILO approach to strategic compliance model planning. The Committee requests the Government to provide information on the structure of the labour inspection system, including an organizational chart, if available, and to provide information on the status and conditions of services of labour inspectors including recruitment procedures, qualifications for the positions, and status in comparison to other civil servants. The Committee further encourages the Government to pursue its efforts towards strategic planning and ensuring that the labour inspectorate has the human and material resources necessary for the effective performance of its duties. It requests the Government to provide information on measures taken in this regard and to provide information on the total number of labour inspectors, their distribution across districts, and the training provided to them, including dates and subjects covered for each training session and number of inspectors attending each session. The Committee notes the Government’s request for technical assistance from the Office and firmly hopes that this assistance will be provided in the near future.

Articles 14, 20 and 21 of the Convention No. 81 and Articles 19, 26 and 27 of the Convention No. 129. Annual report on labour inspection activities notification of occupational accidents and diseases to the labour inspection services. The Committee notes the Government’s indication in response to its previous request concerning the inclusion of information on the agricultural sector in the annual labour inspection report, that the general annual labour report is published without specifying inspections undertaken in the agricultural sector. The Government indicates that statistics on agricultural undertakings liable to inspection and on the number of workers in the sector are not up to date and that there are no reliable statistics on the number of inspections carried out in agriculture. The Committee also takes due note of the statistical information provided by the Government, in its report related to occupational accidents and occupational safety and health violations, indicating that the majority of accidents in the 2016–2017 and 2017–2018 financial years, occurred in the manufacturing industry and the tobacco farming sector. The Government also indicates that only one suspected occupational disease in the tobacco industry was reported to the Directorate of Occupational Safety and Health within the 2017/2018 financial year. Noting the Government’s indication that an annual labour inspection report is published, the Committee requests the Government to ensure that the report is transmitted to the ILO, in accordance with Articles 20 of Convention No. 81 and 26 of Convention No. 129, The Committee encourages the Government to pursue its efforts to ensure that future annual inspection reports contain complete information on all the subjects listed in Articles 21 of Convention No. 81 and 27 of Convention No. 129, including the number of inspections carried out in the agricultural sector. It also encourages the Government to provide information on any measures taken or envisaged to improve the notification of cases of occupational diseases to the labour inspectorate, in accordance with Articles 14 of Convention No. 81 and 19 of Convention No. 129.

Issues specifically concerning labour inspection in agriculture

Articles 3, 6, 9 and 21 of Convention No. 129. Functions of the labour inspection system in agriculture, training of labour inspectors in agriculture and inspection visits. In its previous comment, the Committee noted that the agricultural sector provided a livelihood to 80 per cent of the population. The Committee notes the Government’s indication that there are no reliable statistics on the number of inspections carried out in agriculture and that in the recent past, there have been no violations detected and no penalties imposed. It notes, however, the Government’s indication that from 2016 to 2018, the agricultural sector (tobacco) reported the third most occupational accidents, after manufacturing and construction. Noting the significant proportion of workers engaged in the agricultural sector, the Committee requests the Government to provide further information on the measures taken to strengthen the labour inspection system in agriculture, with particular attention to the tobacco sector. It requests the Government to provide information on the provision of adequate training for labour inspectors for the performance of their duties in the agricultural sector as well as on the measures taken to ensure that inspections take place in the agricultural sector as often and as thoroughly as is necessary to ensure the effective application of the relevant legislation.

B. Labour Administration

Labour Administration Convention, 1978 (No. 150)

Articles 1, 4, 5 and 6 of the Convention. Organization, functioning of the labour administration system and preparation of a national labour policy. The Committee previously requested information on the progress made in the adoption of the national employment and labour policy. In this respect, the Committee notes with interest the adoption, in 2017, of the National Employment and Labour Policy. The Committee notes that the policy was developed in consultation with the social partners and that it aims to provide a framework to promote productive and decent employment in the economy and increase compliance with labour standards by employers, investors and workers. It focuses on ten priority areas. The Committee further notes the organizational chart of the labour administration system provided by the Government with its report, in response to the Committee’s previous request. Lastly, it notes the Government’s indication, in response to the Committee’s previous request, that a functional review of the Ministry of Labour has yet to be done and that it will inform the Office accordingly. The Committee requests the Government to continue to provide information on any measures taken or envisaged with a view to undertaking a functional review of the Ministry of Labour and to provide information on the implementation of the National Employment and Labour Policy

Article 5. Consultation, cooperation and tripartite negotiation in the context of the labour administration system. The Committee notes the information provided by the Government concerning consultations with the social partners related to the National Employment and Labour Policy. The Committee also notes the information provided by the Government in its report on the application of Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), on tripartite consultations on international labour standards. In this respect, it refers to its observations on the application of Convention No. 144.

Article 10. Human resources and material means necessary for the operation of the labour administration system. Following its previous comment, the Committee notes the Government’s indication that the labour administration is present in the 29 districts of the country, which facilitates the population’s access to labour administration services. The Committee notes that, for the 2018/2019 financial years, two training courses varying from 3 to 5 days were provided to officers of the labour administration with technical and financial assistance from the ILO Country Office and the Decent Work Team in Pretoria. In this regard, it notes that trainings have also been provided to newly recruited and existing staff of the labour administration on the following areas: child labour, conflict management and settlement of labour complaints and disputes, labour inspection, management of public employment services and overview of labour laws. The Committee further notes the detailed information provided concerning the financial resources available to the labour administration staff for the performance of their duties during the 2017/2018 and 2018/2019 financial years. The Committee requests the Government to provide information on the number of staff exercising functions in the area of labour administration and to provide further information on the material means currently available to labour administration staff for the performance of their duties.

Article 2 of the Convention. National policy concerning nursing services and nursing personnel. Consultation. The Committee notes with interest the range of policy initiatives adopted by the Government during the reporting period in relation to public health services and the health workforce, particularly with respect to nursing services and nursing personnel. These policies were developed following consultation with and through the active participation of the relevant stakeholders, including the private sector, health training institutions, relevant regulatory bodies and civil society organizations. The Committee notes the adoption of Malawi’s first National Health Policy (NHP) in July 2017, which establishes an overarching framework to guide the achievement of the country’s health sector. It includes among its priority areas: health service delivery; human resources for health; leadership and governance; and health financing. In relation to the health workforce, the 2017 NHP contemplates the adoption of measures to ensure that a sufficient number of adequately trained and motivated health workers, including nurses, are recruited, deployed and retained in line with the health needs of the population at all levels of healthcare service delivery. The Committee also notes the adoption of the medium-term Health Sector Strategic Plan II (HSSP II) in 2017, which outlines a range of objectives and activities and guides for the use of resources during 2017–22. The HSSP II a set of priority strategies, including: improving retention and recruitment of properly deployed and motivated health workers and strengthening the health workforce planning process. The Committee further notes the development, in alignment with the above-mentioned policies on health and health workers, of the Nursing and Midwifery Policy (NMP), adopted in June 2018. The 2018 NMP provides a framework for the provision of comprehensive, quality and equitable nursing and midwifery services that will contribute to achieving the country’s health-related goals. However, challenges noted in the 2018 NMP include a high disease burden in the country, as well as high rates of maternal mortality (439 per 100,000 births), neonatal mortality (27 per 1,000 live births) and an under-5 mortality rate of 64 per 1,000. It is noted that the maternal mortality ratio will need to be reduced by 84 per cent to meet Sustainable Development Goal targets. The main objectives of the 2018 NMP include: reducing nursing and midwifery vacancy rates from the current 63 per cent to 50 per cent by 2022; providing guidance to decision-makers, stakeholders and partners for the effective planning and implementation of nursing and midwifery services; facilitating delivery of quality nursing and midwifery services; supporting quality clinical mentorship and supervision of nursing students; and timely placement of new nursing and midwifery graduates. In addition, the 2018 NMP envisages the participation of a broad range of actors in its monitoring and implementation, including workers’ organizations, nurses’ associations, private sector organizations, development partners, and non-governmental organizations. In addition, the Committee notes the implementation of the Malawi German Health Programme (MGHP), which calls for the adoption of measures, in line with the 2017 NHP and the HSPP II, to ensure a better distribution and increased qualification of clinical and nursing staff in the area of maternal and newborn healthcare. The Committee requests the Government to provide detailed, up-to-date information on the measures taken in the context of the National Health Policy, the Health Sector Strategic Plan II 2017–22, the Nursing and Midwifery Policy and the Malawi German Health Programme, as well as on their impact in practice. In particular, the Committee requests the Government to provide detailed information on the implementation and impact of those measures designed to provide nursing personnel with employment and working conditions, including career prospects and remuneration, which are likely to attract persons to the profession and retain them in it.

Community health nursing. The Committee notes that, according to the HSSP II, a significant proportion of Malawi’s population (84 per cent) has no access to healthcare, especially those persons residing in rural and hard-to-reach areas of the country. In this context, the Committee notes the adoption of the country’s first National Community Health Strategy 2017–22 (NCHS) in November 2017, which is aligned with existing national health policies as well as with the HSSP II. The 2017 NCHS was developed following an intensive consultative process with relevant stakeholders in the health sector, which included local communities. The principal objective of the 2017 NCHS is to ensure quality, integrated community health services that are affordable, culturally acceptable, scientifically appropriate, and accessible to every household. In order to achieve this goal, the 2017 NCHS includes among its strategic objectives that of building a sufficient, equitably distributed, well-trained community health workforce that includes community nursing personnel. The Committee notes that, according to the 2017 NCHS, there is a shortage of community nurses. Moreover, the 2017 NCHS indicates that community nurses are being used to fill gaps at health facilities and are therefore spending less time on community work. They face challenges that include: lack of clarity regarding their roles and tasks; inadequate training and supervision; and poor incentives. To address the shortage of adequately trained and motivated community health workers (CHWs), the 2017 NCHS sets out a number of key interventions: recruitment of additional CHWs, including a minimum of two community health nurses (CHNs) per health centre and one community midwife assistant (CMA) per community health delivery structure; promoting equitable geographical distribution of CHWs; and providing high-quality, integrated pre-service and in-service training to all CHWs. The 2017 NCHS also envisages the launch of a more standardized package of financial, non-financial, social and performance-based incentives aimed at increasing the retention of CHWs and supporting their strong performance across the country. The Committee further notes that the 2018 NMP includes a policy priority area on community health nursing and midwifery. In this regard, the 2018 NMP includes the following strategies, among others: providing leadership for community health nursing and midwifery services and strengthening such services by integrating community health nursing interventions in all nursing and midwifery services. The Committee requests the Government to provide detailed updated information on the effective implementation, monitoring and impact of the measures adopted in the framework of the National Community Health Strategy 2017–22 and the 2018 Nursing and Midwifery Policy with regard to nursing services and nursing personnel, including nurses, midwives and community health workers.

Mental health nurses. The Committee notes that, according to the HSSP II, there are many people in Malawi with mental disorders, a majority of whom seek medical care at health facilities, but are misdiagnosed due to presenting with physical symptoms. Common disorders such as depression and anxiety, whose prevalence is estimated at 10–20 per cent are often missed or not treated. The Government indicates in the HSSP II that, although at least 20 psychiatric nurses and psychiatric clinical officers are trained every year, the number of psychiatric staff actively carrying out mental health-related activities is very low due to the general shortage of nurses in the health system. The Committee requests the Government to provide updated detailed information on the measures taken or envisaged to ensure the quantity and quality of mental health nursing care necessary for attaining the highest possible level of health for the population.

Article 2(2)(a) and (3). Nursing education and training. The Committee notes that the HSSP II places a priority on improving the quality of training through the expansion of training and education opportunities, including through continuing professional development (CPD). The HSSP II provides for the adoption of specific measures to promote quality nursing and midwifery pre-service education, such as measures to institutionalize periodic curriculum reviews for all training institutions, as well as institutionalizing student–tutor ratios for specified nursing and midwifery training programmes; and measures to promote continued collaboration between teaching and clinical/community staff. The HSSP II also calls for the implementation of measures that encourage all nurses and midwives to pursue CPD, by institutionalizing CPD and supporting nurses and midwives undergoing upgrading courses and in-service training. The Committee notes in this regard that mandatory CPD for nurse midwives was re-introduced by the Nurses and Midwives Council of Malawi with the assistance of the MGHP. The Committee requests the Government to provide updated detailed information on the nature, implementation, monitoring and impact of the measures adopted, to ensure that nursing personnel, including midwives, are provided with quality education and training appropriate to the exercise of their functions as well as to their professional career development.

Article 5(2). Determination of conditions of employment and work. In response to the Committee’s previous comments, the Government indicates that the collective bargaining agreement for the nursing sector has still not been concluded. The Committee requests the Government to continue to provide information on the status of the collective bargaining process and progress made in this regard, as well as to transmit a copy of any collective agreements concluded for the nursing sector.

Article 7. Occupational safety and health. The Committee notes that the President of Malawi declared a state of national disaster in response to the COVID-19 pandemic on 19 March 2020. The National Covid-19 Preparedness and Response Plan was subsequently launched for the period March–June 2020. The Plan includes among its specific objectives building the capacity of healthcare workers on highly infectious diseases (such as COVID-19), as well as procuring and distributing supplies and equipment to all treatment centres. In this regard, the Committee draws the attention of the Government to paragraph 49 of the Nursing Personnel Recommendation, 1977 (No. 157), which provides that: “(1) all possible steps should be taken to ensure that nursing personnel are not exposed to special risks. Where exposure to special risks is unavoidable, measures should be taken to minimise it; (2) measures such as the provision and use of protective clothing, immunisation, shorter hours, more frequent rest breaks, temporary removal from the risk or longer annual holidays should be provided for in respect to nursing personnel regularly assigned to duties involving special risks so as to reduce their exposure to these risks; and (3) in addition, nursing personnel who are exposed to special risks should receive financial compensation.” The Committee also draws the Government’s attention to the ILO Guidelines on decent work in public emergency services, 2018, which recognize the need to protect public emergency workers, including emergency health workers, from exposure to communicable diseases. In particular, paragraphs 50 and 51 of the Guidelines stress that suitable and sufficient personal protective equipment (PPE) should be provided as protection against exposure to hazardous conditions for public emergency services’ workers and that workers and/or their representatives should be consulted and participate in relation to the selection and correct use of PPE. Noting that nursing personnel, as they are often in close contact with patients, are at high risk of being infected while treating patients with suspected or confirmed COVID-19 when infection control precautions, including use of personal protective equipment (PPE) are not strictly practiced, the Committee requests the Government to provide detailed updated information on the safety measures being taken or that are envisaged, including the provision of PPE and training in its use, as well as provision of adequate rest breaks during workers’ shifts and limitations on excessive hours wherever possible, with a view to protecting the health and well-being of nurses and limiting as much as possible their risk of contracting COVID-19.

Part V of the report form. Application in practice. The Committee notes that, according to the WHO Global Health Observatory, the total number of nursing and midwifery personnel in Malawi increased from 4,573 in 2016 to 7,957 in 2018. Nevertheless, the HSSP II indicates that the overall vacancy rate for nursing officers is currently 66 per cent (63 per cent among assistant community health officers, 72 per cent for chief nurse technicians, 45 per cent for chief nursing officers and 31 per cent for community midwifery assistants). This personnel shortage places a heavy burden on those nursing and midwifery professionals who are in employment. The Committee requests the Government to provide updated detailed information on the application of the Convention in practice, including statistical data disaggregated by sex, age and region concerning: the ratio of nursing personnel to the population; the number of persons enrolled in nursing schools; the number of female and male nurses who enter and leave the profession each year; the organization and the operation of all institutions which provide healthcare services; as well as official studies, surveys and reports addressing health workforce issues in the Malawi health sector.

Comments adopted by the CEACR: Malawi

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Occupational Health and Safety Convention, 1981 (No. 155) and Safety and Health in Agriculture Convention, 2001 (No. 184)

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Comments adopted by the CEACR: Malawi

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ADOPTED_BY_THE_CEACR_IN 2022

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ADOPTED_BY_THE_CEACR_IN 2021

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Occupational Health and Safety Convention, 1981 (No. 155) and Safety and Health in Agriculture Convention, 2001 (No. 184)

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B. Labour Administration

Labour Administration Convention, 1978 (No. 150)

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