Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Malawi (Ratification: 1965)

Article 1 of the Convention. Sexual harassment. The Committee notes that the Gender Equality Act of 2013 requires employers to implement a variety of specific policies and procedures aimed at eliminating sexual harassment in the workplace, including a procedure for filing grievances and a policy to ensure appropriate disciplinary action against perpetrators. Section 6 of the Act prohibits sexual harassment, defined as “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated”. The Committee recalls its general observation of 2003, which refers to sexual harassment as covering the following elements: (1) (quid pro quo): any physical, verbal or non verbal conduct of a sexual nature and other conduct based on sex affecting the dignity of women and men which is unwelcome, unreasonable and offensive to the recipient; and a person’s rejection of, or submission to, such conduct is used explicitly or implicitly as a basis for a decision which affects that person’s job; or (2) (hostile work environment): conduct that creates an intimidating, hostile or humiliating working environment for the recipient (see also General Survey on the fundamental Conventions, 2012, paragraph 789). The Committee considers that the reference to a “reasonable person” from the standpoint of the harasser substantially limits the protection and could result in insufficient coverage of the whole range of possible sexual harassment cases. The Committee requests the Government to consider amending the Gender Equality Act of 2013 to explicitly include hostile work environment harassment and to ensure that “reasonable person” no longer refers to the harasser, but to an outside person in order to ensure effective protection against all cases of sexual harassment in the workplace.

Articles 2 and 3. Scope of application. The Committee recalls that for a number of years it has been noting the exclusion of certain categories of workers from the protections provided in the Employment Act, 2000. Recalling that no provision in the Convention limits its scope as regards individuals, the Committee reiterates its request for the Government to indicate any regulations governing self-employed persons, members of the armed forces, the prison service, and the police protecting these categories of workers against discrimination in employment and occupation on the grounds set out in the Convention.

National equality policy. The Committee notes the Government’s indication that, in addition to the National Gender Policy, a number of other policies address equality in employment, including the Policy on Equal Opportunities for Persons with Disabilities, the Youth Policy and the National Employment and Labour Policy, and that the latter was the result of social dialogue and also targets women, youth and persons with disabilities. The Committee reminds the Government of its obligation under the Convention to take into account all the grounds set out in Article 1(1)(a) of the Convention in declaring and implementing the national equality policy. The Committee asks the Government to indicate the measures taken or envisaged, and the concrete results achieved, in the context of the Youth Policy and the National Employment and Labour Policy to promote equality of opportunity and treatment with respect to the grounds set out in the Convention. It also asks the Government to provide information on the implementation and results achieved under the Policy on Equal Opportunities for Persons with Disabilities.

Access of rural women to soft loans and credit facilities. The Committee referred previously to the assistance provided by the Government to rural groups, in the framework of the women’s economic empowerment programme. The Committee again asks the Government to provide specific information on the number of men and women in rural areas who have benefited from soft loans and credit facilities, as well as on the specific measures taken or envisaged to facilitate access to these facilities for rural women, or any training provided to rural women on business management and various production skills.

Parts III to V of the report form. The Committee notes that the Gender Equality Act of 2013 designates the Human Rights Commission as the body responsible for its enforcement, including a variety of specific functions, such as receiving complaints, carrying out related investigations, and promoting and facilitating access to remedies (sections 8 and 9). The Committee further notes that, according to the report submitted by the Government to the United Nations Human Rights Committee, the Government has provided training related to the Act to 65 officers of the State, including magistrates, police prosecutors and social welfare officers in 13 implementing districts; however, the Government states that financial constraints limit its capacity to provide such training to all relevant stakeholders (CCPR/C/MWI/Q/1/Add.2 of 14 July 2014). The Committee further notes the Government’s statement that no court decisions have been made regarding questions of principle relating to the application of the Convention. The Committee requests the Government to provide information on the number, nature, and outcome of any complaints filed with the Human Rights Commission pursuant to the Gender Equality Act of 2013, including any investigations undertaken or remedies provided in this regard. The Committee also asks the Government to provide up-to-date information on any related judicial decisions and cases of infringements reported to or detected by the labour inspection services, as well as the remedies provided or sanctions imposed. Lastly, the Committee asks the Government to indicate any measures taken or envisaged to provide training to relevant target groups, including workers’ and employers’ organizations and public officials, regarding the meaning and implications of the principle of equality of opportunity and treatment in employment and occupation, as established by the Convention.

Statistics. The Committee recalls its previous comments regarding the lack or limited availability of sex-disaggregated data and statistics on employment and education and the importance of such information in determining the nature, extent and causes of discrimination and in monitoring the impact of the measures taken and the policies adopted. The Committee notes that the Gender Equality Act of 2013 empowers the Minister responsible for gender, children and social welfare to make regulations for “the collection of data in incidences and causes of discrimination on account of gender and sexual harassment for purposes of policy reform and programming and any other matter prescribed under this Act” (section 23(2)(d)). The Committee requests the Government to provide information on any such regulations issued, and on their implementation, or on other steps taken to collect and analyse statistical data, disaggregated by sex, regarding participation in education, vocational training and at the various levels in the different sectors and occupations, in both the public and private sectors, including in the informal economy, if possible.