2008 Annual Survey of violations of trade union rights - Malawi
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Malawi, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca7f32.html [accessed 12 July 2014]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Employer resistance to union activity and the poor enforcement of union rights legislation continue to be a problem, particularly in the export processing zones.
Trade union rights in law
Rights recognised in theory: Workers have the right to form and join trade unions. This includes civil servants, with the exception of army personnel and the police. Unions must register with the Ministry of Labour, although this is largely a formality. The law prohibits anti-union discrimination and requires that workers sacked because of union activities must be reinstated.
Cumbersome strike procedures: Registered unions may strike. However, strike action can only be taken after all dispute settlement and conciliation procedures have been exhausted. The employer and the Ministry of Labour must be given at least seven days' notice after the lapse of the 21 days notice and upon the declaration by Ministry of Labour conciliators that the dispute is unresolved. Workers in essential services have a limited right to strike. The law does not specifically prohibit retaliation against strikers.
Collective bargaining is recognised in law, provided the union represents at least 20 per cent of employees at enterprise level. At a sectoral level, unions must represent at least 15 per cent of employees. In the absence of collective agreements, the law provides for industrial councils to set wages and conditions and resolve disputes.
In the lights of trade union opposition, a whole series of draft laws are still pending, including a reform of the Employment Act, Labour Relations Act and Workmans Compensation Act.
Labour laws apply in the export processing zones (EPZs).
Trade union rights in practice and Violations in 2007
Background: Satisfactory levels of rainfall provided good harvests and food security in one of the poorest countries in the world. Political disputes delayed the adoption of the 2007/2008 and the 2008/2009 budgets for several months.
Employer resistance: Since barely 10 per cent of workers are in formal employment, the labour legislation automatically excludes the vast majority of workers in the informal economy. For the small minority in formal jobs, the resistance of some employers, and the government, towards respecting their rights, limits freedom of association and collective bargaining. For instance, the informal workers organised themselves into a union and have since been affiliated to the Malawi Congress of Trade Unions (MCTU), but it took them over two years to get registered with the Ministry of Labour, as they claim the union had no negotiating partner. The MCTU has reported in recent years on a number of cases where workers are badly mistreated, and where employers appear unaware that workers have employment rights by law.
Particularly poor situations exist in most Chinese establishments where wages are paid at the national minimum wage, workers are locked in factories/bakeries and trade union rights are not being guaranteed.
Right to strike opposed: Ambiguities in the application of the law, especially the right to strike, reduce the effectiveness of laws protecting workers. The law does not specify exactly which services are essential, enabling the authorities to declare strikes illegal. For example, on 27 September the University of Malawi teachers' union were issued a court injunction stating that the strike they were planning to hold concerning wage increases was illegal. Lawyers appealed, and in the end the strike was allowed to go ahead. On 15 November the strikers obtained a pay increase and returned to work.
At Telekom Networks Malawi Limited, the workers did not accept the management offer for a salary increase offered to them in May 2006 and stayed outside while waiting for management to address their concerns. Management declared this a strike and fired all union leaders. The industrial relations court unprofessionally twisted the facts and found the workers guilty of an offence. An attempt has been made to appeal at the High Court, but a date is yet to be set for hearing.
Many companies in the EPZs resist union activity, while the unions complain that they have little access to workers in the zones.