Termination of Employment Convention, 1982 (No. 158) - Malawi (Ratification: 1986)

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

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.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes with regret 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 initially made in 2014.

Repetition

The Committee refers to its previous comments in which it noted that section 28(3) of 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 trusts that the Government will be mindful of each of the provisions of the Convention, in order to ensure their full and effective application, when reviewing the Employment Act. It invites the Government to provide a copy of the amended Act to the Office as soon as it is adopted. Please also 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, under section 2(2), members of the armed forces, prison service and police are excluded from the coverage of the Employment Act, except when they are employed in a civil capacity. The Government indicated its intention to harmonize the termination standards for the public sector to give effect to Article 2(4) and (6) of the Convention. The Government reported in June 2011 that procedures regarding termination of employment with regard to these specific categories of workers were stipulated in the Standing Orders. The Committee once again invites the Government to provide copies of the Standing Orders to examine how 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. The Government indicates that, under 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)). In its 1995 General Survey, Protection against unjustified dismissal, paragraph 266, the Committee noted that Article 12 is intended to take account of very different schemes and situations to afford some income protection for workers whose employment is terminated. Moreover, the Committee notes the judgment of the Industrial Relations Court in Case No. 396 of 2011 (Kalolokesya & Another v. Beit Cure International Hospital), before the entry into force of the Pension Act, in which the Court had to determine whether the respondent acted properly by amending the pension rules to enable it to pay severance pay from its contribution towards the pension fund. The Committee invites the Government to provide information on the effective application of the Pension Act, both in law and in practice, in relation to Article 12.

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), particularly that 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 provide substantive and procedural elaborations 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. The Committee requests the Government to provide copies of judicial decisions of labour courts interpreting section 35(6) of the Employment Act, more specifically with regard to the loss of severance allowance being limited to cases of 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 stresses the importance of operating an appropriate framework for collective dismissals in line with the Convention. It asks the Government to report on the progress being made to amend the Employment Act to incorporate procedures of collective dismissals.

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

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes with regret that the Government’s report contains no reply to its previous comments. It is therefore bound to repeat its previous comments made in 2014.

Repetition

The Committee refers to its previous comments in which it noted that section 28(3) of 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 trusts that the Government will be mindful of each of the provisions of the Convention, in order to ensure their full and effective application, when reviewing the Employment Act. It invites the Government to provide a copy of the amended Act to the Office as soon as it is adopted. Please also 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, under section 2(2), members of the armed forces, prison service and police are excluded from the coverage of the Employment Act, except when they are employed in a civil capacity. The Government indicated its intention to harmonize the termination standards for the public sector to give effect to Article 2(4) and (6) of the Convention. The Government reported in June 2011 that procedures regarding termination of employment with regard to these specific categories of workers were stipulated in the Standing Orders. The Committee once again invites the Government to provide copies of the Standing Orders to examine how 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. The Government indicates that, under 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)). In its 1995 General Survey, Protection against unjustified dismissal, paragraph 266, the Committee noted that Article 12 is intended to take account of very different schemes and situations to afford some income protection for workers whose employment is terminated. Moreover, the Committee notes the judgment of the Industrial Relations Court in Case No. 396 of 2011 (Kalolokesya & Another v. Beit Cure International Hospital), before the entry into force of the Pension Act, in which the Court had to determine whether the respondent acted properly by amending the pension rules to enable it to pay severance pay from its contribution towards the pension fund. The Committee invites the Government to provide information on the effective application of the Pension Act, both in law and in practice, in relation to Article 12.

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), particularly that 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 provide substantive and procedural elaborations 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. The Committee requests the Government to provide copies of judicial decisions of labour courts interpreting section 35(6) of the Employment Act, more specifically with regard to the loss of severance allowance being limited to cases of 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 stresses the importance of operating an appropriate framework for collective dismissals in line with the Convention. It asks the Government to report on the progress being made to amend the Employment Act to incorporate procedures of collective dismissals.

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

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

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

The Committee refers to its previous comments in which it noted that section 28(3) of 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 trusts that the Government will be mindful of each of the provisions of the Convention, in order to ensure their full and effective application, when reviewing the Employment Act. It invites the Government to provide a copy of the amended Act to the Office as soon as it is adopted. Please also 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, under section 2(2), members of the armed forces, prison service and police are excluded from the coverage of the Employment Act, except when they are employed in a civil capacity. The Government indicated its intention to harmonize the termination standards for the public sector to give effect to Article 2(4) and (6) of the Convention. The Government reported in June 2011 that procedures regarding termination of employment with regard to these specific categories of workers were stipulated in the Standing Orders. The Committee once again invites the Government to provide copies of the Standing Orders to examine how 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. The Government indicates that, under 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)). In its 1995 General Survey, Protection against unjustified dismissal, paragraph 266, the Committee noted that Article 12 is intended to take account of very different schemes and situations to afford some income protection for workers whose employment is terminated. Moreover, the Committee notes the judgment of the Industrial Relations Court in Case No. 396 of 2011 (Kalolokesya & Another v. Beit Cure International Hospital), before the entry into force of the Pension Act, in which the Court had to determine whether the respondent acted properly by amending the pension rules to enable it to pay severance pay from its contribution towards the pension fund. The Committee invites the Government to provide information on the effective application of the Pension Act, both in law and in practice, in relation to Article 12.

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), particularly that 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 provide substantive and procedural elaborations 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. The Committee requests the Government to provide copies of judicial decisions of labour courts interpreting section 35(6) of the Employment Act, more specifically with regard to the loss of severance allowance being limited to cases of 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 stresses the importance of operating an appropriate framework for collective dismissals in line with the Convention. It asks the Government to report on the progress being made to amend the Employment Act to incorporate procedures of collective dismissals.

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

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

The Committee notes the Government’s brief report received in May 2014 indicating that the process to amend the Employment Act No. 6 of 2000 will commence in 2014. The Committee refers to its previous comments in which it noted that section 28(3) of 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 trusts that the Government will be mindful of each of the provisions of the Convention, in order to ensure their full and effective application, when reviewing the Employment Act. It invites the Government to provide a copy of the amended Act to the Office as soon as it is adopted. Please also 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).

Observations from the International Organisation of Employers (IOE). The Committee notes the communication of August 2014 whereby the International Organisation of Employers (IOE) included Malawi in its observations concerning the application of the Convention.

Article 2 of the Convention. Workers excluded from the scope of the Convention. The Committee previously noted that, under section 2(2), members of the armed forces, prison service and police are excluded from the coverage of the Employment Act, except when they are employed in a civil capacity. The Government indicated its intention to harmonize the termination standards for the public sector to give effect to Article 2(4) and (6) of the Convention. The Government reported in June 2011 that procedures regarding termination of employment with regard to these specific categories of workers were stipulated in the Standing Orders. The Committee once again invites the Government to provide copies of the Standing Orders to examine how 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. The Government indicates that, under 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)). In its 1995 General Survey, Protection against unjustified dismissal, paragraph 266, the Committee noted that Article 12 is intended to take account of very different schemes and situations to afford some income protection for workers whose employment is terminated. Moreover, the Committee notes the judgment of the Industrial Relations Court in Case No. 396 of 2011 (Kalolokesya & Another v. Beit Cure International Hospital), before the entry into force of the Pension Act, in which the Court had to determine whether the respondent acted properly by amending the pension rules to enable it to pay severance pay from its contribution towards the pension fund. The Committee invites the Government to provide information on the effective application of the Pension Act, both in law and in practice, in relation to Article 12.

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), particularly that 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 provide substantive and procedural elaborations 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. The Committee requests the Government to provide copies of judicial decisions of labour courts interpreting section 35(6) of the Employment Act, more specifically with regard to the loss of severance allowance being limited to cases of 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 stresses the importance of operating an appropriate framework for collective dismissals in line with the Convention. It asks the Government to report on the progress being made to amend the Employment Act to incorporate procedures of collective dismissals.

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

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the Government’s brief replies to the points raised in the 2010 direct request received in June 2011. The Government indicates in its report that the judiciary is an independent body and interpretation and decisions are not subject to outside influence. The Committee noted in its previous comments that section 28(3) of 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 invites the Government to provide in its next report 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 the coverage of the Employment Act under section 2(2), except when they are employed in a civil capacity. The Government indicated its intention to harmonize the termination standards for the public sector to give effect to Article 2(4) and (6). The Government reports in June 2011 that procedures regarding termination of employment with regard to these specific categories of workers are stipulated in the Standing Orders. The Committee invites the Government to provide in its next report copies of the Standing Orders to examine how the protection provided is at least equivalent to that afforded by the Convention to the above categories of civil servants.

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), particularly that 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 provide substantive and procedural elaborations of a “fair” dismissal. The Government reports 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. The Committee asks the Government to include in its next report copies of judicial decisions of labour courts interpreting section 35(6) of the Employment Act more specifically with regard to the loss of severance allowance being limited to cases of serious misconduct.

Articles 13 and 14. Termination of employment for economic, technological, structural, or similar reasons. The Government reports that all employers comply with administrative statements and policies on retrenchments, and retrenchment packages are examined before they are implemented. It further indicates that consultations with the social partners are at an advanced stage to incorporate procedures of collective dismissals in the amended Employment Act. The Committee stresses the importance of operating an appropriate framework for collective dismissals in line with the Convention. It asks the Government to report on the advancements in the process to amend the Employment Act to incorporate procedures of collective dismissals.

Part V of the report form. Practical information on the application of the Convention. The Committee previously invited the Government to provide information on the impact of the global economic crisis on the number of terminations in the country. The Committee invites the Government to include in its next report information on the manner in which the Convention is applied in practice, including available statistics on the activities of the appeal bodies and on the number of terminations carried out for economic or similar reasons.

[The Government is asked to reply in detail to the present comments in 2014.]

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the Government’s report received in June 2010, including its replies to previous direct requests (including reasons for termination). In reply to the Committee’s request regarding safeguards against abuse of employment contracts for a specified period of time, the Government refers to section 28(3) of the Employment Act (No. 6 of 2000), which legally treats specific term or task contracts as indefinite contracts when they are used to fill a permanent position. The Committee invites the Government to provide in its next report information on how the Industrial Relations Court interprets section 57(2) of the Employment Act on protection against abusive recourse to fixed-term contracts is applied in practice (Article 2(3)).

Article 2 of the Convention. Workers excluded from the scope of the Convention. The Committee notes that members of the armed forces, prison service, and police are excluded from the coverage of the Employment Act under section 2(2), except when they are employed in a civil capacity. The Government indicates its intention to harmonize the termination standards for the public sector to give effect to Article 2(4) and (6). In this regard, the Committee refers to its previous comment and asks the Government to provide in its next report information about the steps taken to provide protection that is at least equivalent to that afforded by the Convention to the above category of civil servants.

Article 12(3). Loss of entitlement to severance payment in case of termination for serious misconduct. The Government indicates in its report that the statutory grounds for losing one’s entitlement to severance allowance in section 35(6), particularly that of being “fairly dismissed for a reason related to his conduct”, should be read in conjunction with sections 57–61 of the Act, which provide substantive and procedural elaborations of a “fair” dismissal. The Government further communicates its intention to provide the Committee with relevant court decisions in the future. The Committee looks forward to receiving information in the Government’s next report on how the loss of severance allowance is limited to cases of serious misconduct.

Articles 13 and 14. Terminations of employment for economic, technological, structural, or similar reasons. The Committee notes the Government’s communication that the existing legal framework does not give effect to Articles 13 and 14 of the Convention. The Government indicates that it failed to reach an agreement with its social partners regarding the employer’s consultation and notification obligations for terminations related to economic, technological, structural, or similar reasons at the time of drafting the Employment Act. The Government also indicates that it has previously issued temporary administrative statements requiring employers to notify the Ministry of Labour and seek its approval, once in 1993, and recently again due to the economic crisis. The Committee stresses the importance of operating an appropriate framework for collective dismissals in line with the Convention. It encourages the Government and the social partners to reach an agreement in order to fully apply these provisions of the Convention. It invites the Government to report on the results of its efforts to give effect to Articles 13 and 14 and to include information on the impact of the global crisis on the number of terminations in the country.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its 2007 direct request, which read as follows:

1. The Committee takes note of the Government’s report received in September 2007 which refers, in reply to the 2000 direct request, to some of the provisions of the Employment Act (No. 6 of 2000). It also takes note of the judicial decision of the Industrial Relations Court in Blantyre of June 2007, enclosed to the report. The Committee would appreciate to continue receiving information on the manner in which the provisions of the Convention are applied in practice (Parts IV and V of the report form). It also asks the Government to report in detail on the following points.

2. Article 2 of the Convention. Workers excluded from the scope of the Convention. The Committee notes that according to section 2, the Employment Act does not apply to members of the armed forces, the prisons service or the police except those employed in a civilian capacity. It also notes that during a probationary period, which shall not in any event exceed 12 months, a contract of employment may be terminated at any time by either party without notice (section 26 of the Employment Act). Contracts for a specified period of time or for a specific task shall terminate on the date specified for its termination or on the completion of the task, respectively, and no notice shall be required for its termination (section 28 of the Employment Act). The Committee asks the Government to provide the information required in the report form under Article 2, particularly on adequate safeguards provided against recourse to contracts of employment for a specified period of time, the aim of which is to avoid the protection resulting from the Convention (Article 2, paragraph 3), and on special arrangements concluded to provide, as a whole, protection that is at least equivalent to the protection afforded under the Convention (Article 2, paragraphs 4–6 – items (d) and (e) of the report form).

3. Article 4. Valid reason for termination. Section 57 of the Employment Act requires “a valid reason for …[a] termination connected with the capacity or conduct of the employee or based on the operations requirements of the undertaking”. Section 62 of the Act promotes that an employee may complain to a District Labour Officer and, if it is not settled, to refer the dispute to the Industrial Relations Court. The Committee asks the Government to indicate how “valid reason” is interpreted by the District Labour Officers at the Industrial Relations Court, providing court decisions on the matter.

4. Articles 5(e) and 6. Invalid reasons for termination. The Committee takes note of sections 46(1), 47(2) and 48 of the Employment Act concerning sick and maternity leave. The Committee asks the Government to indicate how it ensures that workers, who do not fulfil legal requirements to sick or maternity leave on full or half pay, are guaranteed that their temporary absence from work because of illness or injury, or for reasons related to maternity does not constitute a valid reason for termination. Please also provide information on the manner in which section 48 is applied in practice in accordance with Article 5(e).

5. Article 7. Procedure prior to termination. The Government indicates that section 57(2) of the Employment Act provides that the employment of an employee shall not be terminated before the employee is provided an opportunity to defend himself or herself. The Committee requests the Government to provide detailed information on the manner in which effect is given in practice to section 7(2) of the Employment Act, providing court decisions on the matter.

6. Article 12, paragraph 3. Loss of the entitlement of severance pay in case of termination for serious misconduct. The Committee asks the Government to indicate how it is ensured in practice when applying section 35(6), of the Employment Act that the loss of entitlement of severance pay or other similar benefits is provided only in case of serious misconduct of the workers, providing information on how serious misconduct is defined in practice for this purpose.

7. Articles 13 and 14. Terminations of employment for economic, technological, structural or similar reasons. The Committee requests the Government to indicate how effect is given in law and in practice to Article 13 concerning consultation of workers’ representatives and Article 14 concerning notification of the terminations to the competent authority, in case of termination of employment for economic, technological, structural or similar reasons.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

1. The Committee takes note of the Government’s report received in September 2007 which refers, in reply to the 2000 direct request, to some of the provisions of the Employment Act (No. 6 of 2000). It also takes note of the judicial decision of the Industrial Relations Court in Blantyre of June 2007, enclosed to the report. The Committee would appreciate to continue receiving information on the manner in which the provisions of the Convention are applied in practice (Parts IV and V of the report form). It also asks the Government to report in detail on the following points.

2. Article 2 of the Convention. Workers excluded from the scope of the Convention. The Committee notes that according to section 2, the Employment Act does not apply to members of the armed forces, the prisons service or the police except those employed in a civilian capacity. It also notes that during a probationary period, which shall not in any event exceed 12 months, a contract of employment may be terminated at any time by either party without notice (section 26 of the Employment Act). Contracts for a specified period of time or for a specific task shall terminate on the date specified for its termination or on the completion of the task, respectively, and no notice shall be required for its termination (section 28 of the Employment Act). The Committee asks the Government to provide the information required in the report form under Article 2, particularly on adequate safeguards provided against recourse to contracts of employment for a specified period of time, the aim of which is to avoid the protection resulting from the Convention (Article 2, paragraph 3), and on special arrangements concluded to provide, as a whole, protection that is at least equivalent to the protection afforded under the Convention (Article 2, paragraphs 4–6 – items (d) and (e) of the report form).

3. Article 4. Valid reason for termination. Section 57 of the Employment Act requires “a valid reason for …[a] termination connected with the capacity or conduct of the employee or based on the operations requirements of the undertaking”. Section 62 of the Act promotes that an employee may complain to a District Labour Officer and, if it is not settled, to refer the dispute to the Industrial Relations Court. The Committee asks the Government to indicate how “valid reason” is interpreted by the District Labour Officers at the Industrial Relations Court, providing court decisions on the matter.

4. Articles 5(e) and 6. Invalid reasons for termination. The Committee takes note of sections 46(1), 47(2) and 48 of the Employment Act concerning sick and maternity leave. The Committee asks the Government to indicate how it ensures that workers, who do not fulfil legal requirements to sick or maternity leave on full or half pay, are guaranteed that their temporary absence from work because of illness or injury, or for reasons related to maternity does not constitute a valid reason for termination. Please also provide information on the manner in which section 48 is applied in practice in accordance with Article 5(e).

5. Article 7. Procedure prior to termination. The Government indicates that section 57(2) of the Employment Act provides that the employment of an employee shall not be terminated before the employee is provided an opportunity to defend himself or herself. The Committee requests the Government to provide detailed information on the manner in which effect is given in practice to section 57(2) of the Employment Act, providing court decisions on the matter.

6. Article 12, paragraph 3. Loss of the entitlement of severance pay in case of termination for serious misconduct. The Committee asks the Government to indicate how it is ensured in practice when applying section 35(6), of the Employment Act that the loss of entitlement of severance pay or other similar benefits is provided only in case of serious misconduct of the workers, providing information on how serious misconduct is defined in practice for this purpose.   

7. Articles 13 and 14. Terminations of employment for economic, technological, structural or similar reasons. The Committee requests the Government to indicate how effect is given in law and in practice to Article 13 concerning consultation of workers’ representatives and Article 14 concerning notification of the terminations to the competent authority, in case of termination of employment for economic, technological, structural or similar reasons.

[The Government is asked to reply in detail to the present comments in 2009.]

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its 2000 direct request, which read as follows:

The Government states in its report for the period ending 30 June 1999 that the Employment Act has not yet been adopted but was scheduled to be tabled at the November 1999 session of Parliament. If the Bill is not yet adopted, the Committee hopes that the Government will take every measure to ensure that it is adopted as soon as possible and that the new legislation addresses the points previously raised by the Committee pertaining to Articles 4, 5(b)-(e), 7 and 12(1), of the Convention. The Committee would appreciate receiving a copy of the new Employment Act as soon as it becomes available.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Government states in its report for the period ending 30 June 1999 that the Employment Act has not yet been adopted but was scheduled to be tabled at the November 1999 session of Parliament. If the Bill is not yet adopted, the Committee hopes that the Government will take every measure to ensure that it is adopted as soon as possible and that the new legislation addresses the points previously raised by the Committee pertaining to Articles 4, 5(b)-(e), 7 and 12(1), of the Convention. The Committee would appreciate receiving a copy of the new Employment Act as soon as it becomes available.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the information provided by the Government in reply to its earlier comments, including court decisions concerning termination of employment. It notes, in particular, information on measures taken to encourage collective bargaining with a view to address the issue of "temporary absence from work" under Article 6 of the Convention.

Article 2. The Committee notes the Government's statement to the effect that Regulations applicable to public servants provides for sufficient protection to employees of the Government including teachers. It also notes the adoption of the Public Service Act, 1994 (No. 19), which contains provisions concerning protection of public service employees against unjustified dismissal (section 27). The Committee further notes from the Government's report that the Government is in the process of the revision of the Employment Act; the Government indicates that the provisions of the new revised Employment Act will hopefully apply to all categories of employees. The Committee would be grateful if the Government would keep it informed of any developments in this sphere. Please supply a copy of the revised Employment Act as soon as it is adopted.

Articles 4 and 5. In its earlier comments the Committee noted that under section 10 of the Employment Act no valid reason need be given in case of termination of employment with notice, and that no legal guarantees are provided for in regard to invalid reasons for termination listed in paragraphs (b), (c), (d) and (e) of Article 5. The Government however stated in its reply that labour officers do endeavour in practice to solicit the reasons for termination of employment even with notice, and the reasons listed in paragraphs (b), (c), (d) and (e) of Article 5 are not considered in practice as admissible reasons for termination of employment. The Government assured that the necessary legislative measures will be taken to remedy this situation.

The Committee notes from the latest report that the Government is seeking technical assistance in the revision of the labour legislation, including the Employment Act, in order to bring it into conformity with the Convention. The Committee also notes that the draft Labour Relations Act has been already prepared with the assistance of the ILO. It reiterates its hope that appropriate measures will be taken in the very near future in order to revise the national legislation in such a way that it would give full effect to these Articles of the Convention, and asks the Government to indicate, in its next report, any progress achieved in this regard.

Article 7. The Committee notes the provision of section 45 of the Malawi Public Service Commission Regulations (MPSR), as well as the provision of section 27(1)(c) of the Public Service Act of 1994, according to which an employee is given a reasonable period of time prior to termination in order to reply to the charges made against him in writing. As regards the private sector, the Government indicates that there is usually provision for appeal within the grievance procedures, which may be invoked prior to or at the time of termination. The Committee would be grateful if the Government would clarify this issue, describing, in particular, the grievance procedure before termination and indicating more precisely by what method of implementation referred to in Article 1 effect is given to this provision of the Convention in the private sector.

Article 8, paragraph 1. In its earlier comments the Committee noted from the Government's report that workers whose contracts are terminated with notice have no right of appeal in the legislation, but that unfair termination is actionable in practice at common law. It asked the Government to supply a copy of relevant court decisions. The Committee observes that neither of the two court decisions supplied by the Government with its latest report concerns termination of employment with notice. It therefore repeats its request for relevant court decisions in order to be able to assess the implementation of this provision of the Convention, according to which "a worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against the termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator". It also repeats its request to include available statistics (such as the number of appeals against unjustified termination, the outcome of such appeals, etc.), in accordance with point V of the report form.

Article 12, paragraph 1. In its earlier comments the Committee noted from the Government's report that a worker earning not more than a stipulated amount of annual wages is entitled to severance pay under the Severance Pay Order (1976) of the Regulation of Minimum Wages and Conditions of Employment Act, and that such severance pay is paid only to employees who have served for a minimum of five years with the same employer. The Committee recalled in this connection that this Article does not allow the entitlement to severance allowance to be made conditional upon the level of wages or length of service with the same employer, though it provides for a possibility to give effect to paragraph 1 either by subparagraph (a) (severance allowance or other separation benefits) or by subparagraph (b) (benefits from unemployment insurance or assistance or other form of social security), or by a combination of both. It asked the Government to adopt measures in order to bring the national legislation into conformity with the Convention on this point. It also asked the Government to indicate how effect is given to this Article in respect of categories of workers expressly excluded from the application of the Severance Pay Order, such as persons employed in the public service, employees of statutory bodies, of traditional authorities and local authorities, as well as apprentices. The Committee notes the Government's intention, expressed in its latest report, to bring the national legislation into conformity with this Article. It hopes that the Government will not fail to adopt appropriate measures, in the course of the legislative reform referred to above, in order to give full effect to this provision of the Convention, and asks the Government to supply, in its next report, information on any progress made in this regard.

Article 13. The Committee notes the information supplied by the Government concerning the setting up of Joint Consultative Committees where managers may discuss with workers' representatives, among other things, issues concerning redundancies that may arise as a result of technological or economic reasons. The Government also informs of the newly issued statement on Trade Unions and Collective Bargaining which concerns the conclusion of collective agreements on various employment issues, including issues of redundancies. The Committee would be grateful if the Government would describe in more detail consultations with workers' representatives, through Joint Consultative Committees referred to above, concerning contemplated redundancies, and indicate how far before the contemplated terminations such consultations take place. Please also provide a copy of the statement on Trade Unions and Collective Bargaining referred to above.

Article 14. The Government indicates that there are no texts providing for administrative measures requiring employers to report the contemplated redundancies to the Ministry of Labour, but that such an obligation on the part of employers is complied with in practice. The Committee would be grateful if the Government would indicate, in its next report, how far before the contemplated terminations the notification thereof to the competent authority must take place. Please also specify the method of implementation, among those listed in Article 1, which gives effect to this provision of the Convention.

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes the information provided by the Government in reply to its earlier comments.

Article 2 of the Convention. The Government indicates that the national legislation which gives effect to the provisions of the Convention covers all branches of economic activity but that the application is limited largely to employed persons in the lower income group. The Committee notes, however, that under section 2, paragraphs (b) and (c), of the Employment Act (Application) Order of 1964 the protection afforded by the Employment Act does not apply to "an employee of the Government, other than those designated by the Government as members of the Industrial Class" or to "an employee who is a member of the United Teaching Service". Please indicate how the protection afforded under the Convention is provided in respect of these categories of employed persons. Please also indicate the measures taken or envisaged to apply the legislation to all income groups.

Article 4. In its previous comments the Committee noted that under section 10 of the Employment Act no valid reason need be given in case of termination of employment with notice. The Government indicates in its report that, though labour officers do endeavour in practice to solicit the reasons for termination of employment even with notice, it is envisaged that legislative measures will soon be considered to ensure compliance with this provision of the Convention. The Committee hopes that such measures will be adopted in the near future and asks the Government to report on any progress made in this regard.

Article 5. The Government states that section 61 of the Trade Union Act guarantees that union membership or participation in union activities shall not constitute a valid reason for termination (paragraph (a)). It also states that there are no legal guarantees in regard to the other reasons listed in paragraphs (b), (c), (d) and (e) of this Article. Though, according to the report, these reasons are not considered in practice and in certain cases as admissible reasons for termination of employment, the Government states that it will soon consider taking measures to remedy the situation. The Committee hopes that measures will be taken in the very near future in order to give full effect to this Article and asks the Government to report any progress made in this connection.

Article 6. The Committee notes the Government's statement to the effect that apprentices and employees whose contracts are for less than three months, though excluded from the protection afforded by the national legislation, enjoy the protection of this Article in practice. The Committee recalls in this connection that the provisions of the Convention shall be given effect by laws or regulations, collective agreements, arbitration awards or other methods of implementation prescribed by Article 1. It therefore expresses the hope that appropriate measures, legislative or otherwise, will be taken in the near future in order to give full effect to this provision of the Convention in respect of the above categories of workers and asks the Government to provide, in its next report, information on any progress made in this regard.

Article 7. The Government indicates that workers are generally provided an opportunity to defend themselves against the allegations made. It states that, in the public service, it is required by regulation to provide such an opportunity to employees prior to termination; as regards the private sector, the Ministry of Labour requires that the opportunity to defend oneself should be incorporated in the established terms and conditions of employment. The Committee would be grateful if the Government would supply a copy of the regulation referred to above and indicate more precisely by what method of application effect is given to this provision of the Convention in the private sector, and whether in the latter case an opportunity to defend oneself is provided to the workers prior to or at the time of termination.

Article 8, paragraph 1. The Committee notes from the Government's report that workers subject to summary dismissal are entitled to take their case to court with or without the assistance of the Ministry of Labour in order to obtain damages as provided for by section 53(g) of the Employment Act. It also notes that workers whose contracts are terminated with notice have no right of appeal in the legislation, but that unfair termination is actionable in practice at common law. The Committee would be grateful if the Government would supply a copy of the relevant court decisions and include available statistics (such as the number of appeals against unjustified termination, the outcome of such appeals, etc.), in accordance with point V of the report form.

Article 12, paragraph 1. The Committee notes from the Government's report that a worker earning not more than a stipulated amount of annual wages is entitled to severance pay under the Severance Pay Order (1976) of the Regulation of Minimum Wages and Conditions of Employment Act, and that such severance pay is paid only to employees who have served for a minimum of five years with the same employer. The Committee recalls in this connection that this Article does not allow the entitlement to severance allowance to be made conditional upon the level of wages or the length of service with the same employer, though it provides for a possibility to give effect to paragraph 1 either by subparagraph (a) (severance allowance or other separation benefits) or by subparagraph (b) (benefits from unemployment insurance or assistance or other form of social security), or by a combination of both. It therefore asks the Government to adopt measures to bring the national legislation into conformity with the Convention on this point. It also asks the Government to indicate how effect is given to this Article in respect of categories of workers expressly excluded from the application of the Severance Pay Order, such as persons employed in the public service and employees of statutory bodies, of traditional authorities and local authorities, as well as apprentices.

Articles 13 and 14. The Government states that there are no laws or regulations on termination of employment for economic, technological or structural reasons in Malawi, but there have been some administrative measures requiring employers to report the contemplated redundancies to the Ministry of Labour. The Government also indicates that, in practice, an employer is required to state the reasons for termination and to give other relevant information, which is also communicated to the workers' representatives, where there is a representative workers' organization. While noting this information, the Committee recalls that, under Article 13, the employer shall not only provide the workers' representatives concerned in good time with relevant information concerning the terminations contemplated, but shall also give them, as early as possible, an opportunity for consultation on measures to be taken to avert or to minimize the terminations and measures to mitigate the adverse effects of any terminations on the workers concerned, such as finding alternative employment. This provision should be applied by methods of implementation referred to in Article 1 of the Convention. The Committee therefore asks the Government to provide, in its next report, information on measures taken or envisaged to give effect to this Article.

As regards the employer's obligation to notify the competent authority as provided for in Article 14, the Committee would be grateful if the Government would supply the texts of administrative measures referred to above.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the information provided by the Government in reply to its earlier comments.

Article 2 of the Convention. The Government indicates that the national legislation which gives effect to the provisions of the Convention covers all branches of economic activity but that the application is limited largely to employed persons in the lower income group. The Committee notes, however, that under section 2, paragraphs (b) and (c), of the Employment Act (Application) Order of 1964 the protection afforded by the Employment Act does not apply to "an employee of the Government, other than those designated by the Government as members of the Industrial Class" or to "an employee who is a member of the United Teaching Service". Please indicate how the protection afforded under the Convention is provided in respect of these categories of employed persons. Please also indicate the measures taken or envisaged to apply the legislation to all income groups.

Article 4. In its previous comments the Committee noted that under section 10 of the Employment Act no valid reason need be given in case of termination of employment with notice. The Government indicates in its report that, though labour officers do endeavour in practice to solicit the reasons for termination of employment even with notice, it is envisaged that legislative measures will soon be considered to ensure compliance with this provision of the Convention. The Committee hopes that such measures will be adopted in the near future and asks the Government to report on any progress made in this regard.

Article 5. The Government states that section 61 of the Trade Union Act guarantees that union membership or participation in union activities shall not constitute a valid reason for termination (paragraph (a)). It also states that there are no legal guarantees in regard to the other reasons listed in paragraphs (b), (c), (d) and (e) of this Article. Though, according to the report, these reasons are not considered in practice and in certain cases as admissible reasons for termination of employment, the Government states that it will soon consider taking measures to remedy the situation. The Committee hopes that measures will be taken in the very near future in order to give full effect to this Article and asks the Government to report any progress made in this connection.

Article 6. The Committee notes the Government's statement to the effect that apprentices and employees whose contracts are for less than three months, though excluded from the protection afforded by the national legislation, enjoy the protection of this Article in practice. The Committee recalls in this connection that the provisions of the Convention shall be given effect by laws or regulations, collective agreements, arbitration awards or other methods of implementation prescribed by Article 1. It therefore expresses the hope that appropriate measures, legislative or otherwise, will be taken in the near future in order to give full effect to this provision of the Convention in respect of the above categories of workers and asks the Government to provide, in its next report, information on any progress made in this regard.

Article 7. The Government indicates that workers are generally provided an opportunity to defend themselves against the allegations made. It states that, in the public service, it is required by regulation to provide such an opportunity to employees prior to termination; as regards the private sector, the Ministry of Labour requires that the opportunity to defend oneself should be incorporated in the established terms and conditions of employment. The Committee would be grateful if the Government would supply a copy of the regulation referred to above and indicate more precisely by what method of application effect is given to this provision of the Convention in the private sector, and whether in the latter case an opportunity to defend oneself is provided to the workers prior to or at the time of termination.

Article 8, paragraph 1. The Committee notes from the Government's report that workers subject to summary dismissal are entitled to take their case to court with or without the assistance of the Ministry of Labour in order to obtain damages as provided for by section 53(g) of the Employment Act. It also notes that workers whose contracts are terminated with notice have no right of appeal in the legislation, but that unfair termination is actionable in practice at common law. The Committee would be grateful if the Government would supply a copy of the relevant court decisions and include available statistics (such as the number of appeals against unjustified termination, the outcome of such appeals, etc.), in accordance with point V of the report form.

Article 12, paragraph 1. The Committee notes from the Government's report that a worker earning not more than a stipulated amount of annual wages is entitled to severance pay under the Severance Pay Order (1976) of the Regulation of Minimum Wages and Conditions of Employment Act, and that such severance pay is paid only to employees who have served for a minimum of five years with the same employer. The Committee recalls in this connection that this Article does not allow the entitlement to severance allowance to be made conditional upon the level of wages or the length of service with the same employer, though it provides for a possibility to give effect to paragraph 1 either by subparagraph (a) (severance allowance or other separation benefits) or by subparagraph (b) (benefits from unemployment insurance or assistance or other form of social security), or by a combination of both. It therefore asks the Government to adopt measures to bring the national legislation into conformity with the Convention on this point. It also asks the Government to indicate how effect is given to this Article in respect of categories of workers expressly excluded from the application of the Severance Pay Order, such as persons employed in the public service and employees of statutory bodies, of traditional authorities and local authorities, as well as apprentices.

Articles 13 and 14. The Government states that there are no laws or regulations on termination of employment for economic, technological or structural reasons in Malawi, but there have been some administrative measures requiring employers to report the contemplated redundancies to the Ministry of Labour. The Government also indicates that, in practice, an employer is required to state the reasons for termination and to give other relevant information, which is also communicated to the workers' representatives, where there is a representative workers' organization. While noting this information, the Committee recalls that, under Article 13, the employer shall not only provide the workers' representatives concerned in good time with relevant information concerning the terminations contemplated, but shall also give them, as early as possible, an opportunity for consultation on measures to be taken to avert or to minimize the terminations and measures to mitigate the adverse effects of any terminations on the workers concerned, such as finding alternative employment. This provision should be applied by methods of implementation referred to in Article 1 of the Convention. The Committee therefore asks the Government to provide, in its next report, information on measures taken or envisaged to give effect to this Article.

As regards the employer's obligation to notify the competent authority as provided for in Article 14, the Committee would be grateful if the Government would supply the texts of administrative measures referred to above.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee takes note of the Government's first and second reports on the application of the Convention. It would be grateful if, in its next report, the Government would communicate information on the following points:

Article 2 of the Convention. Please indicate whether the national legislation which gives effect to the provisions of the Convention covers all branches of economic activity and all employed persons.

Article 4. The Committee has noted that under section 10 of the Employment Act of 1964 no valid reason need be given in case of termination of a contract of employment by the employer with notice. It would like to draw the Government's attention to the fact that this Article of the Convention requires there to be a valid reason for any termination of employment, whether with or without notice. It therefore asks the Government to provide, in its next report, information on measures taken or envisaged in order to bring the national legislation into conformity with the Convention in this regard.

Article 5. Please indicate how it is guaranteed that the following shall not constitute valid reasons for termination: (a) union membership or participation in union activities; (b) seeking office as, or acting in the capacity of, a workers' representative; (c) the filing of a complaint or the participation in proceedings against an employer; (d) race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; (e) absence from work during maternity leave.

Article 6. It appears that under national legislation (Apprenticeship Regulations of 1964, Second Schedule, paragraph 2(d) and Apprenticeship (General) Order of 1966, section 13; Employment Act of 1964, section 18) apprentices and employees whose contracts are for less than three months do not enjoy the protection of this Article. The Committee therefore asks the Government to indicate how effect is given, or is supposed to be given to this Article in respect of these categories of workers.

Article 7. Please indicate whether a worker is provided an opportunity to defend himself, prior to or at the time of termination of the employment for reasons related to his conduct or performance, against the allegations made.

Article 8, paragraph 1. Please indicate whether workers whose employment has been terminated with or without notice are entitled to appeal against the termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator.

Article 12, paragraph 1. The Government states in its first report that "where the worker is so entitled either by legislation or the terms stated in his contract of employment, he is entitled to all other terminal benefits such as ... severance pay ...". The Committee therefore asks the Government to indicate clearly the provision of the legislation according to which a worker shall be entitled to severance allowance or other separation benefits, or benefits from unemployment insurance or assistance, in accordance with this Article.

Articles 13 and 14. (Consultation of workers' representatives and notification to the competent authority in cases of termination of employment for economic, technological, structural or similar reasons.) Please indicate how effect is given to these Articles by laws or regulations, or by other methods of implementation referred to in Article 1 of the Convention.

Point V of the report form. Please provide general information on the manner in which the Convention is applied in practice, indicating any difficulties encountered in the implementation of the Convention.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee has noted the first report. It would be grateful if the Government would provide a copy of the Employment Act (Chap. 55.02) and the Apprenticeship Act (Chap. 55.06), to which reference is made in the report, in order to enable the Committee to consider whether and to what extent these two Acts are in conformity with the provisions of the Convention.