Trade Unions
Freedom to Join and Form a Union
Under the Constitution, every person has the right to freedom of association, which includes the freedom to form associations, and all persons have the right to form and join trade unions or not to form or join trade unions.
The Labour Relations Act 1996 defines trade union as a combination of persons, the principal purposes of which are the representation and promotion of employees’ interests and the regulation of relations between employees and employers, and includes a federation of trade unions but not an organization or association that is dominated by an employer or employers’ organization.
Discrimination on the grounds of trade union membership or trade union activities is prohibited. Trade union membership (or lack of it) should not be a condition for gaining or maintaining employment.
Source: §31-32 of the Constitution of Malawi 1994; §2-6 of the Labour Relations Act 1996, last amended in 2021
Freedom of Collective Bargaining
Trade union(s) representing employees in a sector, may request one or more duly authorized employers’ organizations representing employers in that sector to enter into collective bargaining. Similarly, employers’ organisation (s) may request one or more duly authorised trade unions representing employees in that sector to enter into collective bargaining. The respondent organization, must give the requesting party a written reply within sixty days of receiving the request.
Where trade union(s) representing at least fifteen percent of employees in a sector, has made a written request to enter into collective bargaining, and the employers’ organization has failed to reply within sixty days of receiving the request, or has refused the request, the trade union may apply in the prescribed form to the Minister requesting the establishment of an industrial council. This is the same in the case of an employers’ organization seeking to initiate collective bargaining with a trade union.
If the Minister is satisfied that such notices were given but were not complied with by another party, he or she can establish an industrial council, the functions of which can include any matters agreed by the parties. These can be:
(a) negotiating wages and conditions of employment; (b) the establishment of dispute resolution machinery; (c) the development of an industrial policy for the industry/sector concerned.
All parties to the negotiation of a collective agreement are required to bargain in good faith and make every reasonable effort to conclude a collective agreement. A collective agreement once concluded, must:
(a) be in writing and signed by the parties to the agreement;
(b) contain the date on which it is to become effective;
(c) contain procedures for the avoidance and settlement of disputes arising out of the interpretation, application and administration of the agreement, which may include a reference to conciliation or arbitration; and
(d) provide for such other matters as may be agreed between the parties.
A collective agreement is binding upon the parties to the agreement. The terms of the collective agreement must be incorporated into the employment contract of each employee who is covered by such collective agreement.
The Tripartite Advisory Council was established in 1996 to advise the Minister on all issues relating to labour and employment, including the promotion of collective bargaining, the labour market, human resources development and the review of the operation and enforcement of the Labour Relations Act and any other Act relating to employment. This board is composed of 12 members, four each from the government, trade unions and employers’ organisations.
Source: §26, 27 & 30-33 of the Labour Relations Act 1996, last amended in 2021
Right to Strike
Under the law, the term “strike” means concerted action resulting in a cessation of work, a refusal to work or to continue to work by employees, or a slowdown or other concerted activity of employees that is designed to or does limit production or services, but does not include an act or omission required for the safety or health of employees, or a refusal to work where essential services are required.
Any dispute, whether existing or imminent, may be reported to the Principal Secretary responsible for labour by, or on behalf of, any of the parties to the dispute. If a dispute is reported to the Principal Secretary responsible for labour and he or she is satisfied that the dispute settlement procedures established in a collective agreement covering the parties to the dispute have been exhausted, unless all parties have consented to waive those procedures, the Principal Secretary responsible for labour or any person authorized by him or her to do so, must endeavour to conciliate the parties.
The conciliation must be completed within twenty-one days of the receipt of the report, unless the parties to the dispute agree to extend the time. A dispute will be deemed to be unresolved if a party fails to attend or the parties fail to reach an agreement on the settlement of the dispute within the time of 21 days. Where the unresolved dispute concerns the interpretation or application of any statutory provision or any provision of a collective agreement or contract of employment; or an essential service, either party to such dispute, or the Principal Secretary responsible for labour in the case of essential service, may apply to the Industrial Relations Court for determination of the dispute. However, where it concerns matters other than those referred to above the parties may either refer the dispute to court or may give notice that they intend to strike or lockout. A party may not take action by way of strike or lockout if there the procedure for attempting conciliation has not been complied with, or the dispute has been referred for determination to the Industrial Relations Court.
Where a party to a dispute intends to strike or lockout, it must give notice in writing to the other party and the Principal Secretary responsible for labour at least seven days before taking such action.
An employer or employee carrying on or engaged in an essential service cannot strike or lockout in connection with any such essential service, and the determination of whether a service is essential will be decided by the Industrial Relations Court. During the Strike or Lockout, the provisions of a collective agreement, if any, between the parties will not be deemed to have been breached by reason only of such action; and similarly, the contract of employment with respect to each employee involved in the strike or lockout will also not be deemed to have been breached by reason only of such action.
No civil proceedings can be brought against any employee, employer, organization or federation of organizations, or officer or member of such organizations, in respect of any strike or lockout which is in conformity with the law. If an employee who has participated in a strike in conformity with this Act or who has been locked out by his or her employer presents himself or herself for work after the end of the strike or lockout, the employer will, within a reasonable period, reinstate such employee in the employment that he or she held immediately prior to the strike or lockout, unless material changes to the employers’ operations have resulted in the abolition of such employment.
Furthermore, according to amendments in the Malawi's Employment Act of 2000 in 2021, employers are allowed to deduct workers’ wages for participation in a strike. An employer may deduct wages of an employee who is away from work for more than three days in a year, regardless of whether the absence is consecutive or not, or whether the subject matter of the strike is the same or not. A wage deduction made under this section must be recorded in the book of payments and deductions.
An employer cannot employ a person to perform the work of an employee participating in a strike or who is locked out unless such work is necessary to maintain minimum maintenance services. Where minimum maintenance services are not defined in the collective agreement between the parties, these are the services, the interruption of which would result in material damage to a working area or machinery. An employee has the right to refuse to do any work normally done by an employee or employees who are on strike or locked out, except in the case of an essential service.
Source: §2 & 42-53 of the Labour Relations Act 1996, last amended in 2021; §50A of the Employment Act (No. 6 of 2000), last amended in 2021
Regulations on Trade Unions
- Constitution of Malawi 1994
- Employment Act (No. 6 of 2000), last amended in 2010
- Labour Relations Act 1996
