By 
Concerns over proposed amendments to the Labour Relations Act
The Centre for Human Rights and Rehabilitation (CHRR) is deeply concerned about proposed changes to the Labour Relations Act contained in the Labour Relations Act Amendment Bill, 2021. CHRR is concerned that some of the amendments being proposed pose a serious threat to workers’ rights, including the right to take industrial action, which is enshrined in Section 31 of the Republican Constitution of Malawi.
CHRR is particularly concerned about the proposed section 2 (4) of the Labour Relations Act amendment bill, which states that “An employee shall not be entitled to receive wages for the period he is absent from work due to participation in a strike.” This amendment amounts to state sanctioning the victimisation of employees who participate in a strike.
The amendment also defeats the purpose of section 31(4) of the Constitution of Malawi, which was introduced specifically to provide for the right of employees to withdraw labour if they have grievances against the employer. CHRR urges the Tonse Government to respect the prescriptions of the Constitution, which is the supreme law of the land, and to not bow down to the self–serving interests of some employers. CHRR finds that there is no justification for removing the current protections for employees who participate in industrial action or strike. By giving employers vast powers to withhold employees’ wages at will, CHRR fears that the proposed amendments will be open to abuse.
CHRR also notes that the proposed reforms are wholly pro-employer and are at the expense of the rights of employees. Employees have far less bargaining power than employers have and should, therefore, be given additional protections. The proposed amendments, however, further tip the balance of power in favour of employers, which is unacceptable. CHRR urges the Government to take necessary action to come up with legislation that promotes the interests of employers without violating workers’ rights.
CHRR has also noted with deep concern that the bill has been introduced without consulting relevant stakeholders. CHRR urges government to uphold the country’s international commitments and encourage engagement in effective social dialogue. Malawi is a signatory to the International Labour Organisation (ILO) convention 144, which calls for tripartite consultations among government, employers and workers.
The new ILO Declaration on fundamental principles and rights at work adopted by the International Labour Conference in 1998, declares that all “Members, even if they have not ratified the Conventions in question, have an obligation, arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights…”, which include freedom of association.
Our call for action
In light of the foregoing, we recommend the following:
- That the Labour Relations Act (Amendment Bill), 2021 be immediately withdrawn pending consultations;
- That the proposed section 2(4) of the Labour Relations Act amendment bill, which allows an employer to withhold wages of an employee who participates in a strike, be scrapped off. Such an amendment is dangerous as it will give employers an unbridled hand to withhold employees’ wages with impunity.
- That the Ministry of Labour conduct countrywide consultations to seek views of relevant stakeholders on the proposed amendments;
Issued on Friday, 2nd July 2021 and signed by:
Michael Kaiyatsa
Executive Director
Cell: 0998895699
Time the labour movement takes its national transformation role
Political machinasation has forced government, as a main agent owning the means of production to convince a bunch of the so called representatives of the masses to pass a Parliamentary Bill which seeks to curtail the right of workers to stage industrial actions as means of balancing power relations in a labour dispute.
This development exposes the hard truth that behind the development rhetoric by most of the country’s leaders, there rears the ugly face of an exploitative intention that the ordinary person who works hard to contribute to the steps towards reaching ‘the promised land” can never imagine.
The Labour Relations (Amendment) Bill, 2021 seeks to amend the Labour Relations Act to “provide for an employer’s right to deduct wages from an employee who is on strike”. As can be seen here, this line of thinking does not take into account the reason(s) for the said industrial action.
The proposed reform, not only ignores international obligations and instruments, but also undermines rather than improves industrial relations by handing the employer the ace card to take advantage of employees who are already oppressed by flouted workplace power balance.
Framers of this Bill seem not to have considered the conditions into which workers are subjected to when they commit their energy, time and effort as inputs for a wider growth process for their employer, the nation and much more so for their own personal growth.
Much as the labour movement through trade unions have made some achievements in fighting for the rights of workers, the latest development by government is a wake call for trade unions to gang up to trim to size the negative capitalistic tendercies that choke workers. Unions have aa long way to go including fighting for fair remuneration and the introduction of social security systems among other labour needs.
The claim by the Malawi Congress of Trade Unions (MCTU) and the Employers Consultative Association of Malawi (ECAM), social partners to the Tripartite Labour Advisory Council, that government did not consult them when coming up with the said amendment bill, speaks volumes of the lack of involvement of the partners.
The lack of involvement of the MCTU, as the representatives of the workers, in policy formulation has severe impact on the type of policies that the government makes and implements for workers and their families.
It is important for the state to realise that it has a unique role as an employment relations actor. It is not just a mere legislator but a critical player in balancing employer/employee power relations by managing the economy, creating jobs, enforcing worker’s rights and as enforcing favourable work and employment relationship policies.
Despite being at the centre stage of discussions of economic changes, lack of involvement of worker’s representatives directly affects the country’s ability to address questions on how workers can add value to the country’s economic transformation through quality employment.
Apart from a few isolated cases, the trade union movement has not made any significant impact on the nature, structure and implementation of government programs. It has unfortunately left its role to be played out by opposition parties and other civil society organizations and development partners as it concentrates on fire-fighting effects not causes of a dysfunctional economy.
It would have been expected that at this time when the nation is faced with a damning economic crisis that has brought to the fore harsh realities and propelled people start discussing fidgety issues around class, exploitation, poverty, inequality and the need for creating an inclusive society, trade union leaders should be on the frontline contributing transformative ideas into national policies.
Being workers’ representative agencies and promoters of an inclusive economy, unions, as grassroots democratic organizers at both the workplace and communities, have a responsibility to see to it that democracy is not just practiced at the national political level but is also observed within local economic structures as a fundamental aspect of any economic transformation and inclusiveness.
Poverty and inequality studies by Oxfam confirm that the characteristics of Malawi’s political and economic system hinders inclusiveness by assuming that the exclusion and exploitation of powerless sections of the society in order to accumulate profit is fundamental to prosperity and wellbeing.
It is high time that trade unions see themselves as an indispensable aspect of social and economic sustainability. Time is now ripe for the labour movement to galvanize support from the community, especially the larger unorganized informal sector of the economy, where there is a high level of solidarity mobilization and willingness to engage in collective action.
Trade unions can impact the policy process at all levels through civil society campaigns and formal negotiations simultaneously
It is therefore an urgent call for trade unions as organised representatives of the most exploited to mobilize machinery in order to alter the logic behind the contemporary economy by negotiating collective bargaining agreements, negotiating a living wage or confronting trade bargains that do not favour the common man.
In order to become a transformative force, it is necessary that the labour movement must (re)define itself as a collective movement, a movement that is addressing not only the symptoms of exclusion and exploitation, but more fundamentally the logic of capital and creating an alternative vision inside the vacuum left by political parties and civil society groups.
It is time union started mobilisation of a much broader base recruiting students and young people, the unemployed and other social movements since all of these have a stake in a more inclusive economy.
Trade unions are by far not the only actor and most likely not even the most effective actor in bringing about, securing and maintaining inclusive economic transformation but they are, due to their democratic, and institutional characteristics, crucial to the process.