Govt goes flattery to justify retrogressive laws

In what can best be described as hypocrisy of the highest order, the Tonse government has assured Malawians that it remains committed to engaging stakeholders in discussion on matters of national importance, including the much-detested Labour Relations (Amendment) Bill, 2021 and the Employment (Amendment) Bill, 2021 on 7th July 2021.

Ironically, the government rejected the views of its stakeholders in the formulation of the laws, which renowned human rights activists and social and political commentators have described as oppressive and retrogressive.

Through a statement the Deputy Minister of Labour, Vera Kamtukule, has issued, the government has gone flattery, assuring the Malawi Congress of Trade Unions (MCTU) and Employers Consultative Association of Malawi (ECAM) of the government’s commitment to dialogue on matters of national importance.

Kamtukule argues that consultation does not necessarily have to result in consensus in order for the government to proceed to take a decision on any given issue.

“What matters is for the government to take into account the views of stakeholders presented during consultation, which the government did in both cases,” reads the statement in our possession.

On the controversial Labour Relations (Amendment) Bill, 2021, Kamtukule clarified that the introduction of deduction of wages of employees who are on strike does not in any way take away their right to strike.

She said this is the position that the International Labour Organisation (ILO) has taken when interpreting the right to strike in relation to the Freedom of Association Convention number 87, stressing that this principle of ‘no work, no pay’ is not unique to Malawi.

“It has been widely adopted by ILO Member States and it is intended to bring fairness by considering the employer as well who cannot sustain the payment of wages when employees withdraw their labour. In Malawi, the right to strike is enshrined in Section 31(4) of the Constitution of the Republic of Malawi and can never be taken away.

“However, in enjoying this right, every worker has an obligation to be paid for providing a service to the employer. It should also be noted that demonstrations are different from strike,” explained the Deputy Minister.

She further stated that unlike demonstrations, strikes are governed by the labour laws, which involve stoppage of work by employees to limit production or services as a legitimate means of persuading their employer to redress any perceived injustices.

Kamtukule added that instead of adopting in totality the ‘no work, no pay’ principle, the Malawi Government has been considerate enough by granting employees three days’ wages, which other jurisdictions do not offer.

However, MCTU, ECAM and the Centre for Human Rights and Rehabilitation (CHRR) have spoken strongly against the laws.

CHRR executive director Michael Kaiyatsa argued that there is no justification for removing the current protections for employees who participate in industrial action or strike.

Kaiyatsa said the passed amendments pose serious threat to workers’ rights, including the right to take industrial action, which is enshrined in Section 31 of the Republican Constitution of Malawi.

He warned the Tonse Alliance against thwarting the rights of workers.

“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 victimization of employees who participate in a strike. We urge the Tonse Government to respect the prescriptions of the Constitution of the Malawi, which is the supreme law of the land, and to not bow down to the self–serving interests of some employers,” he said.

Kaiyatsa further argued that the amended law 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.

He fears that by giving employers vast powers to withhold employees’ wages at will, the proposed amendments will be open to abuse by employers.

“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,” he said.

CHRR has also questioned the government decision to introduce a bill without consulting relevant stakeholders.

The human rights watchdog has urged the 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.

Against this background, CHRR recommended that the Labour Relations Act (Amendment Bill) 2021 be withdrawn and that the government should facilitate consultations with its stakeholders.

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