The Malawi Human Rights Commission, (the Commission), has noted with concern the spate of industrial actions and strikes by employees of public sector organisations, some of which are taking place outside of the context of any negotiations, and their legality is questionable. This is following the findings of the Commission’s human rights monitoring functions, in line with section 129 of the Constitution of the Republic of Malawi (the Constitution), and the Human Rights Commission Act, (Chapter 3:08 of the Laws of Malawi). In particular the Commission notes the grave consequences the industrial actions and strikes have on the delivery of public services, which in turn pose serious negative implications on the enjoyment of human rights.
The protracted industrial actions and strikes have brought into sharp focus critical questions regarding the nature and scope of the right to withdraw labour or to conduct strikes. Considering the disruptive effects of withdrawal of labour and strikes especially for public sector institutions working in the delivery of essential services, including the paralysis of the provision of services, the developments call for reflection by the citizenry on the following important issues. When is an industrial action or strike legal or illegal? Whether or not employees in the delivery of essential services can withdraw labour or go on a strike? Whether or not, and when can, an employer, and in the case of the public sector, the Government, withhold pay for employees undertaking an industrial action or a strike? And, whether or not, and when, can an employer carry out a lock out of its employees?
Thus, while noting that taking part in an industrial action or a strike is a human right and that under section 33(4) of the Constitution, the state is under an obligation to take measures to ensure the right to withdraw labour, and whilst appreciating the validity of some of the issues leading to the strikes, the Commission is emphasising that this right like all human rights must be exercised with due regard to attendant responsibilities, as well as, through actions that are within the parameters of the applicable laws and in compliance with set legal procedures. On this premise the Commission wishes to raise the concerns, observations and recommendations outlined below.
Background to the Current Trend of Strikes or Industrial Actions
The issue of adjustments of remuneration for public service employees is the critical trigger factor for the industrial actions and strikes. This started almost immediately after the passing of the 2014/2015 National Budget when the Civil Servants Trade Union (CSTU) threatened an industrial action having noted that the budget had not made provision for salary increase for civil servants. Government responded by undertaking to effect a 45% average salary increment, and duly implemented the increment from October, 2014.
In turn, some public sector institutions, including the Judiciary support staff and Anti-Corruption Bureau, expressed concerns for not being provided with a similar salary increment. This led them to undertake industrial actions amid on-going negotiations with Government. Most recently, support staff in the University of Malawi also resorted to undertaking industrial actions over salary issues. This resulted in the early unscheduled and indefinite closure of such colleges, with negative implications for the realisation of the right to education by the learners.
Thus, the salary increments currently being implemented in the public service have been characterised with a number of shortcomings, including, differential treatment of employees in the sector. The concerned employees have not been furnished with clear and ample information as to the rationale for such measures, especially where the legitimate expectations of such employees are affected. Section 43 of the Constitution, obliges a decision maker to furnish the persons whose legitimate expectations will be affected by the decision maker’s decisions of the reasons for such decision. The process has also been characterised with a breakdown in communication, e.g. delays in communicating to some public sector institutions of the increments. For example, whereas some public sector institutions received notifications of their increments earlier and started implementing the same in October, 2014, some public sector institutions received such communication as late as December, 2014, and have yet to implement the increments.
On the whole, while the salary adjustments are Government’s measure to harmonise the remuneration in the public sector, the effect of the approach is that for some public sector institutions that have been provided with increments ranging from 5% to 10%, such increments are translating into negligible salary increases. For example, this has translated into a total sum of K1000.00, or K2000.00 as upward adjustments for the salary of an individual worker resulting into an insignificant impact. Considered against the prevailing cost of living and other market forces, such increments are viewed as a mockery by the employees, hence the agitation for industrial actions and strikes. Amidst these developments, on the contrary, the issue of the adjustment of salaries for the State President and Vice President, Cabinet Ministers and Members of Parliament by huge percentages exacerbates the dejection generally felt by concerned employees.
The Applicable Law and Human Rights Standards and Principles
Section 31 of the Constitution protects the right to fair labour practices and fair remuneration. Section 31 (2) of the Constitution guarantees the right to form, to join and membership of, labour unions. Subsection (4) of the same section provides for the right to withdraw labour. The right has also been codified in several international human rights instruments to which Malawi is a party, including the International Labour Organisation Convention on the Right to Organise and Bargain Collectively, and the United Nations Covenant on Economic, Social and Cultural Rights. Non-justified differential treatment of workers in ways that critically disadvantage one group over another, or where such treatments is justified but such justifications are not furnished to the concerned employees, as well as provision of negligible salary increments to workers, has the effect of negating the essence of the right to fair labour practices and fair remuneration.
The Labour Relations Act provides for collective bargaining and the right to withhold labour and set procedures for doing so, including that: employees must exhaust other procedures for resolving issues or differences, e.g. through negotiations, before commencing an industrial action, including through negotiations, conciliation etc; an industrial action or strike must be undertaken as a last resort; a party cannot undertake an industrial action where the unresolved dispute has been referred to the Industrial Relations Court (IRC), for determination; and that, a 7 days’ notice period must be observed before undertaking such action.
Clearly most of the strikes or industrial actions going on or anticipated, are being undertaken in breach of these procedural requirements. The right to withdraw labour is qualified in the sense that employees engaged in the provision of essential services, i.e. “services the interruption of which would endanger the life, health or personal safety of the whole or part of the population”, are not permitted to withdraw labour. Cognizant of the fact that what may or may not constitute “essential services” may be disputable, the Labour Relations Act puts an obligation the responsible Minister to apply to the IRC for direction on what may or may not constitute essential services.
According to the International Labour Organisation (ILO), what is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country. The concept is not absolute, in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population. According to ILO, the following may be considered to be essential services: the hospital sector, electricity services, water supply services, the telephone service, the police and the armed forces, the fire-fighting services, public or private prison services, the provision of food to pupils of school age and the cleaning of schools, air traffic control. On the basis of the foregoing, the legality of industrial actions by employees in such sectors as hospitals is questionable. Furthermore, where strikes in some sectors such as the judiciary and the university are prolonged, the result may be as the same as the disruption of an essential service, given the serious repercussions of such actions on the realisation of the human rights by the general population. This brings into question the legality of such actions.
For instance the judiciary support staff strike has led to negative effects for the realisation of the right to access justice by people in Malawi, as well as increased overcrowding in police holding cells and prisons, leading to a deterioration of the conditions of detention, for example, with respect to sanitation, access to food and control of communicable diseases. The strike has also led to the silent suspension of the 48 hour rule, where observance of this rule is impracticable as the courts are not operational. Most importantly, the Commission is concerned with the fact that, the strike by the judiciary has practically rendered one arm of the government disabled. This seriously erodes the principle of separation of powers and the mechanisms for checks and balances enshrined in the Constitution. The principle is founded on the underlying assumption that there shall always be three arms of government, functional at all times.
Conclusion and Recommendations
In the final analysis, the Commission would like to remind all stakeholders that the right to fair labour practices including the right to withdraw labour, like most rights, can only be exercised within the set legal parameters and with due compliance with set procedures. This includes the need to exhaust all other means of negotiation and compliance with the 7 days’ notice period prior to the industrial action. The Commission would therefore like to urge all public sector employees to exercise the right to fair labour practices, including the right to withdraw labour within the law and with due compliance with set procedures, including ensuring that essential services are not disrupted. In particular, employees engaged in essential services provision such as the hospital sector should at all costs avoid industrial actions which may be tantamount to endangering life and the health of people. Equally, Government should at all times be forthcoming and proactive in addressing reasonable concerns of employees engaged in provision of essential services so as to pre-empt the need for strikes in this sector. Wherefore, the Commission recommends that:
- Government and employees in all concerned organisations are called upon to address the disputes or differences that have led to the ongoing industrial actions or anticipated industrial actions as a matter of urgency and in good faith. This, among other things, entails: the proposition of lawful and reasonable demands as conditions precedent for settlement of labour-related disputes, with due regard to the economic environment that the country is currently operating in; employees should make demands that are reasonable, realistic and manageable within the current economic environment; the negotiating parties should desist from making provocative statements in the course of negotiations, as such statements are likely to pre-empt the on-going negotiations; and on its part, Government should desist from public threats of dismissals and withholding of salaries, which it is on record to have issued in light of the on-going or anticipated strikes, as this is counterproductive.
- The Government and the concerned institutions are reminded of their obligation to ensure that disputes or differences leading to, or that could lead to industrial actions or strikes are resolved in order to avert or minimise the negative consequences of such actions, and the negative effects on the realisation of human rights by the citizenry. The Government must in particular take prompt and deliberate measures to address the reasonable concerns of employees working in public essential service delivery, so as to ensure that the limitation of their right to withdraw labour does not result into negating the essence of the right to fair labour practices. Government should proactively and pragmatically engage the concerned employees in dialogue and negotiation to end the disputes and as much as possible pre-empt the need on the part of the employees for resorting to strikes, or where strikes have already commenced to avoid a situation where such strikes are overly prolonged.
- Employees are also urged to carefully consider other options for resolving labour disputes and that the option of strikes should be weighed against the attendant negative effects such as a freeze of services, with attendant economic losses on the part of the employer.
- In line with the clarifications outlined in this statement, all concerned employees who have proceeded on industrial actions that are outside of the provisions of the law, or have not been undertaken in full compliance with set procedural requirements are called upon to call off such industrial actions.
- The relevant Ministry, the Ministry of Labour and Vocational Training, is urged to have recourse to the courts, as a matter of urgency, as mandated by the law, for directions on what constitutes an essential service.
Ambassador Sophie Asimenye Kalinde
CHAIRPERSON Dated 29th December, 2014.Follow and Subscribe Nyasa TV :