Malawi
The ITUC affiliate in Malawi is the Malawi Congress of Trade Unions (MCTU).
Malawi ratified Convention No. 87 on Freedom of Association and Protection of the Right to Organise (1948) in 1999 and Convention No. 98 on the Right to Organise and Collective Bargaining (1949) in 1965.
Legal
Freedom of association / Right to organise
Freedom of association
The right to freedom of association is regulated by law.
Anti-Union discrimination
The law prohibits anti-union discrimination.
Restrictions on trade unions’ right to organise their administration
- Restrictions on the right to freely draw up their constitutions and rules
- The Labour Relations Act provides a detailed list of the mandatory provisions that any registered organisation must foresee in its rules (e.g. a general meeting open to all members or representatives of members to be held at least once every two year, article 13)
- Restrictions on the right to elect representatives and self-administer in full freedom
- No person who has been convicted of any crime involving fraud or dishonesty shall, within five years of the date of such conviction, be an officer of an organization or a person employed in collecting the funds of an organization (article 20 of the Labour Relations Act).
Categories of workers prohibited or limited from forming or joining a union, or from holding a union office
- Others categories
- Prison officers cannot form or join a union.
Right to collective bargaining
Right to collective bargaining
The right to collective bargaining is recognised by law.
Barriers to the recognition of collective bargaining agents
- Previous authorisation or approval by authorities required to bargain collectively
- Registration is a prerequisite for bargaining status (section 11, Labour Relations Act, 1996), but it is a formality and the process is clear and not onerous.
- Excessive requirements in respect to trade unions’ representativity or minimum number of members required to bargaining collectively
- A union must have 20 per cent membership among the workplace/s or categories of employees it aims to represent in bargaining (section 25, Labour Relations Act, 1996).
- Undue requirements regarding trade unions’ structure, composition and affiliation
- There is a fairly extensive list of requirements that must be included in a union's rules as a prerequisite to registration (section 13, Labour Relations Act, 1996), but while the list is long, the requirements seem largely good practice and reasonable.
Limitations or ban on collective bargaining in certain sectors
- Other categories
- Prison officers (section 3, Labour Relations Act, 1996).
Right to strike
Right to strike
No information available. .
Barriers to lawful strike actions
- Excessively long prior notice / cooling-off period
- There is a seven-day notice period, which, combined with the 21-day conciliation process, may be viewed as excessively long as a minimum period (sections 43-44, Labour Relations Act, 1996).
- Other excessively complex or time-consuming formalities to call a strike
- Section 46 (3) of the Labour Relations Act states that “A party to a dispute intending to strike or lockout, shall give notice in writing to the other party and the Principal Secretary responsible for labour at least seven days before taking such action.”
- Compulsory recourse to arbitration, or to long and complex conciliation and mediation procedures prior to strike actions
- A strike can only be called if the dispute settlement procedure before the Principal Secretary for labour has been exhausted and the dispute is deemed unresolved (article 45 of the Labour Relations Act).
Limitations or ban on strikes in certain sectors
- Discretionary determination or excessively long list of “essential services” in which the right to strike is prohibited or severely restricted
- The Labour Relations (Amendment) Bill, 2021 states that “section 47 has been amended to do away with the requirement for the Industrial Relations Court to determine whether a service is essential. The Minister shall publish a list of essential services which may not go on strike or lockdown and provide compensatory guarantees for the listed essential services; (…)”. It replaces subsection (2) as follows “The Minister shall, by notice published in the Gazette, publish the list of essential services to which this section applies”.
- Discretionary determination or excessively long list of “services of public utility” in which a minimum operational service is can be imposed in the event of strikes
- The Minister may at any time apply to the Industrial Relations Court for a determination as to whether a threatened or actual strike or lockout involves an essential service (article 47(2) of the Labour Relations Act).
In practice
The Malawian government presented a new Labour Relations Amendment Bill to the Parliament without any prior consultation with trade unions, including the Malawi Congress of Trade Unions (MTUC). The draft law was fast-tracked and adopted on 7 July 2021, despite strong rejection by the opposition political parties and days of widespread MTUC-led protests against the bill by the trade unions and civil society at large. The bill had last been discussed by the tripartite partners in 2018 and was shelved.
The new legislative provisions unduly limit the right to strike and punish workers who exercise this right. The law also grants employers the right to withhold wages and arrogates exclusive power to the minister to determine essential services without due process. It excludes the Tripartite Labour Advisory Council but amends the provisions of the Industrial Relations Court.
On 19 September 2017, the Minister of Home Affairs ordered the arrest of 14 workers of the National Registration Bureau who held a meeting in Mzuzu concerning their grievance over payment of wage arrears dating back to May 2017. On the Minister’s order, workers were charged with unlawful assembly and conspiracy to commit a felony. They were later granted bail by police. On 25 September the Malawi Congress of Trade Unions (MCTU) condemned the arrest and demanded an open apology from the Minister. Workers filed a suit for damages over unlawful arrest.
The Mimosa Court Hotel owned by the Minister of Agriculture, Peter Mwanza, dismissed 21 workers for having demanded a wage increase. Moreover, workers complained that the hotel does not pay overtime even though many workers work 11 hour shifts per day. The workers had made their demands known to management in writing on 25 May 2013 and threatened to use strike action, if their demands were not met.
Trade unions are not included in the committees set up by the government to comment on social and economic issues. Union membership is low and many workers, notably those in the lucrative tobacco industry, are illiterate and are not aware that they have rights. The MCTI was included however in the UN-facilitated dialogue set up after the July protests.
Workers in the informal economy have organised themselves into a union, the Malawi Union for the Informal Sector (MUFIS), and have been affiliated to the Malawi Congress of Trade Unions (MCTU). It took over two years to register MUFIS with the Ministry of Labour as they noted that the union had no negotiating partner. The MCTU has, in recent years, reported on a number of cases where workers have been badly mistreated and where employers have appeared unaware that workers have employment rights by law.
Barely 12% of workers are in formal employment. 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. Speaking to the press in June 2009 Ronald Mbewe, general secretary of the Transport and General Workers Union (TGWU), said most employers were reluctant to work with trade unions. His views were echoed by Mary Dzinyemba, general secretary for Commercial Industrial and Allied Workers Union (CIAWU), who said employers preferred to have workers who were ignorant of their rights. Many companies in the export processing zones (EPZ) also resist union activity, while the unions complain that they have little access to workers in the zones.
Legal ambiguities in the application of the right to strike are making it very hard to exercise this right. For instance, the law does not specify exactly which services are essential, enabling the authorities to declare strikes illegal. The length of the procedure is also problematic.