Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

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

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Observation

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The Committee notes the observations of the Malawi Congress of Trade Unions (MCTU), received on 1 September 2023.

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. The Committee recalls that, in June 2022, the Committee on the Application of Standards (CAS) of the International Labour Conference noted with deep concern the trade unions’ allegations of systematic sexual violence and harassment of women, including the rape, assault and discrimination suffered by women workers on tea and macadamia nut plantations. In its conclusions, the CAS urged the Government to take all necessary measures, in consultation with the social partners, to: (1) ensure existing legislation on sexual harassment is in line with the Convention; (2) organize dedicated tripartite discussions on the issue of sexual harassment and violence in the workplace with a view to taking further practical and concrete measures to ensure the effective protection of workers in this regard in law and practice; (3) ensure effective access to and effective functioning of national judicial and non-judicial mechanisms that consider allegations of breach of workers’ rights on grounds of discrimination, including sexual harassment and violence, and provide adequate legal remedies to victims; and (4) continue supporting existing initiatives undertaken by the Malawi Human Rights Commission (MHRC) and the Department of Human Resources Management and Development, including awareness-raising campaigns and the dissemination of the Sexual Harassment Workplace Policy and related guidelines to ensure that employers develop and implement effective workplace harassment policies. The Committee also notes the Government’s indication in its report that, as recommended by the Committee in its previous observation, it would endeavour to undertake a study with special focus on tea plantations and macadamia nut orchards to inform the design of sector specific interventions, and that it would appreciate ILO’s technical and financial support in this regard. The Government adds that the MHRC carried out comprehensive research aimed at providing data on the extent and scope of sexual harassment at the workplace. The Committee also notes that the National Level Gender Audit Report carried out for the Employers’ Consultative Association of Malawi (ECAM) in May 2023 emphasized that, “in order to be able to measure the impact of gender inequalities, discrimination, harassment and abuse in the workplace, it is critical that companies are able to capture and update sex-disaggregated data” (page 42). The Committee also recalls that the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW), in its recent concluding observations, indicated its concerns about the insufficient generation and availability of sex-disaggregated data across various sectors, including education, health, employment, and violence against women, emphasizing that such data is fundamental to inform evidence-based policymaking, program planning, and monitoring of progress towards gender equality goals. The CEDAW also expressed concern regarding the prevalence of: (1) various forms of gender-based violence, including, domestic and sexual violence; (2) sexual harassment in the workplace and in business places and its underreporting due to insufficient information on reporting mechanisms; and (3) trafficking in women and girls, with victims being lured with fraudulent job offers and forced into domestic service or prostitution in private premises out of reach for labour inspectors (CEDAW/C/MWI/CO/8, 30 October 2023, paragraphs 21, 23(a), 33(d) and 51). The Committee further notes that the Office undertook a mission to Malawi from 8 to 12 May 2023 to conduct consultations with constituents to develop an action plan for intervention in the tea sector in Malawi within the framework of the multi-countries project funded by Norway on “Promoting workers’ rights and gender equality”. The mission met with the Ministry of Labour (including some of its regional offices staff), the Employers Consultative Association of Malawi (ECAM), the Malawi Congress of Trade Unions (MCTU), the Tea Association of Malawi Limited (TAML), the Plantation and Agriculture Workers Union (PAWU) and several high-level political figures. The Committee asks the Government to take measures to: (i) fight the various forms of gender-based violence (including rape) and gender-based harassment (including sexual harassment) at the workplace, especially in tea and macadamia nuts plantations; and (ii) strengthen its data collection system with a view to make evidence-based decisions. Please provide information on the results achieved, including the outcome of the research carried out by the MHRC.

Evaluation of the existing legal framework on sexual harassment and its alignment with the Convention. The Committee notes the Government’s indication that: (1) the Gender Equality Act of 2013 is under review and the suggestions to explicitly include “hostile work environment harassment” in the definition of sexual harassment (section 6(1)) and to review the test of “reasonableness” are being considered; and (2) under the ILO/Norwegian development cooperation project, a National Road Map has been developed to promote workers’ rights and gender equality. The Committee also notes, from the Government’s report, that the National Gender Policy of 2015, the National Action Plan to Combat Gender-based Violence, the Gender Equality Act Implementation and Monitoring Plan, and the National Action Plan on Women Economic Empowerment are all under review. It further notes: (1) the adoption of the National Male Engagement Strategy on Gender Equality, Gender-based Violence, HIV and Sexual and Reproductive Health Rights (2023-2030); (2) the establishment of victims support units within the police; and (3) the pending approval of the Public Service Workplace Anti-Sexual Harassment Policy and Guidelines. The Government adds that a Rapid Assessment of Legal and Policy Framework for Gender Equality as well as a Gap Analysis of the Legal and Policy Framework on Gender Equality and Sexual Harassment in the Tea Sector in Malawi were validated and the results shared with the social partners. These will inform the design of appropriate strategies and the upcoming labour law review. The Committee asks the Government to ensure the prompt alignment of the national legal and policy framework with the Convention, in cooperation with the social partners, including by amending section 6(1) of the Gender Equality Act of 2013 to explicitly include hostile work environment harassment in the definition of sexual harassment and by reviewing the test of “reasonableness”. Please provide information on all developments in this respect as well as on progress made in: (i) the implementation of the National Road Map to promote workers’ rights and gender equality; (ii) the current revision of the above-mentioned policies and action plans; and (iii) the follow-up of the rapid assessment and gap analysis of the legal and policy framework on gender equality and sexual harassment.

Tripartite discussion on the issue of sexual harassment and violence in the workplace. The Committee notes the Government’s indication that the Tripartite Labour Advisory Council (TLAC) met in May 2023 and discussed issues of sexual harassment. The TLAC recommended that Malawi ratifies the Violence and Harassment Convention, 2019 (No. 190), and strengthens the capacity of the Ministry of Labour and the social partners in this regard. The Government adds that the social partners started harmonizing their policies as well as developing awareness-raising messages on workplace violence and harassment. The Committee asks the Government to continue to encourage the social partners to take up the issue of sexual harassment and violence in the workplace and to keep it informed of any development in this regard.

Capacity-building and awareness-raising on sexual harassment. The Committee notes the Government’s indication that labour inspectors continue to be trained to prevent, identify, and address cases of discrimination in employment and occupation, including sexual harassment. The Government also says that it has intensified its efforts to conduct labour inspection to identify issues of discrimination through the Zantchito Programme funded by the European Union (with an emphasis on small and medium enterprises). The labour inspection form will also be reviewed to cover violence and harassment issues. In this regard, the Committee emphasizes the importance of having a gender-diversified labour inspection force in order to facilitate the identification of sexual harassment cases, as women workers might find it more difficult to report a case of sexual harassment at the workplace to a male labour inspector. The Committee also refers to the comments it addresses to the Government on the application of the Labour Inspection Convention, 1947 (No. 81), and the Labour Inspection (Agriculture) Convention, 1969 (No. 129). The Government adds that there is a good uptake of the model Sexual Harassment Workplace Policy developed by the MHRC in 2021: many institutions have approached the MHRC to be trained, including sections of the Malawi Police Service (victim support units and human resources), private companies and public institutions, several district council’s gender and youth tripartite working groups, and secondary schools heads and teachers. Similarly, the MHRC carried out a review of sexual harassment workplace policies for several institutions and continues to distribute its model policy. The Committee encourages the Government to intensify its capacity-building and awareness-raising activities on sexual harassment and to provide information on: (i) the activities carried out, (including information on the public targeted and the number of participants); (ii) the dissemination and use of the MHRC’s model Sexual Harassment Workplace Policy; and (iii) the ratio of men and women in the labour inspection services, and measures taken or envisaged to ensure gender balance in this regard.

Access to judicial and quasi-judicial mechanisms and legal remedies for victims of discrimination, including sexual harassment. The Committee notes the Government’s indication that sexual harassment cases being criminal cases, they cannot be handled by the Ministry of Labour and the Industrial Relations Court but are prosecuted by the Magistrate Court and the High Court. It recognizes that, as court fees are payable by victims, this represents an impediment in terms of access to legal remedies. In this regard, the Committee recalls that addressing sexual harassment only through criminal proceedings is normally not sufficient, due to the sensitivity of the issue, the higher burden of proof, which is harder to meet, especially if there are no witnesses (which is often the case), and the fact that criminal law generally focuses on sexual assault or “immoral acts”, and not the full range of behaviour that constitutes sexual harassment in employment and occupation. The Committee also considers that legislation under which the sole redress available to victims of sexual harassment is termination of the employment relationship, while retaining the right to compensation, does not afford sufficient protection for victims of sexual harassment, since it in fact punishes them and could dissuade victims from seeking redress (see 2012 General Survey on the fundamental Conventions. paragraph 792). The Government adds that the MHRC received 16 cases related to sexual harassment in 2021, 15 cases in 2022, and 5 cases from January to June 2023. Noting the Government’s statement that, out of these five cases, two were dropped for “failure to identify witnesses” (the other three still being investigated), the Committee recalls the concerns expressed by the CEDAW about the absence of legal procedural guidelines for the repeal of the “corroboration rule”, whereby the testimony of a witness is required in addition to a victim’s testimony in rape cases. The Committee also recalls that the CEDAW noted the prevalence of sexual harassment in the workplace and in business places and its underreporting due to insufficient information on reporting mechanisms. Furthermore, it called for providing the Independent Police Complaints Commission with adequate human, technical and financial resources to ensure that all cases of gender-based violence are effectively investigated without delay, that perpetrators are prosecuted ex officio and adequately punished, and that victims have access to remedies and adequate support services (CEDAW/C/MWI/CO/8, paragraphs 21, 22 and 33(d)). The above-mentioned 2023 Gender Audit for ECAM also identified barriers to reporting as a cause of the under-reporting of incidents which, in turn, brought companies to underestimate the problem of gender-based discrimination and harassment at work. It also pointed to the fact that sexual harassment cases were tried under the criminal courts as a contributing factor to the very long time it may take for cases to be dealt with and decisions to be issued (pages 7 and 19). The Committee also notes that, during the May 2023 mission to Malawi, regional district labour officers indicated that sexual violence cases were often reported at a very late stage. They highlighted the need to intensify labour inspections and to revitalize existing structure at district level and suggested to establish toll-free lines for reporting incidences of violence and harassment and to provide support services to victims, particularly psychosocial support. They also mentioned the role of traditional chiefs as allies to tackle the issue of violence and harassment. Finally, the Committee notes the MCTU’s observation that efforts, such as awareness programmes, are being made to encourage victims of discrimination in employment to access justice. The Committee requests the Government to : (i) address challenges related to access to legal remedies for victims of discrimination in employment and occupation, including sexual harassment; and (ii) increase the capacity of the competent authorities, including labour inspectors and the Independent Police Complaints Commission, to prevent, identify and address cases of discrimination in employment and occupation, including sexual harassment, as well as workers’ awareness of available remedies. Please provide information on the number of cases of sexual harassment in the public and private sectors dealt with by the courts and the MHRC or detected by labour inspectors, the remedies granted to victims and the sanctions imposed on perpetrators.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in full to the present comments in 2025.]