Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Malawi (Ratification: 1999)

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.