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.