Labour Law

1. FUNDAMENTAL PRINCIPLES OF
LABOUR LAW IN MALAWI
OSMAN PRINCE JAMES YUSUF
SCHOOL OF LAW, ECONOMICS AND GOVERNMENT
DEPARTMENT OF PRIVATE LAW
6TH MARCH, 2024

2. Lecture Outline
• Introduction
• Fundamental principles
- the right to work
- prohibition against forced labour
- non-discrimination
- Freedom of association
• Conclusion

3. Introduction
Labour law is imbedded in core values and ideals which
promote peaceful and harmonious labour relations.
These core values and ideals are therefore referred to
fundamental principles underliying labour law.
The Fundamental principles of labour law in Malawi are to be
found in the Constitution of Malawi, statutes, case law and
international law.
This lecture discusses these principles below.

4. FUNDAMENTAL PRINCIPLES OF LABOUR LAW IN
MALAWI
1. The Right to Work
The right to work is one of the fundamental socio-economic rights whose
realisation leads to the realisation of the other rights.
It is provided under Section 29 of the Constitution of Malawi which states
that every person shall have the right freely to engage in economic activity,
to work and to pursue a livelihood anywhere in Malawi.
ICESCR General Comment No. 18 of 2005: the right to work presupposes
the principle of free will, freedom to organise, good working conditions,
non-discrimination, the right not to be arbitrarily deprived of his/her work,
abolition of slavery, among others

5. 2. Prohibition against forced labour
The right to work requires workers to freely and voluntarily engage
in work without any form of force or intimidation by State or private
entities. This is provided under the Constitution and Employment
Act (2000).
(a). The Constitution
Section 27 of the Constitution of the Republic of Malawi provides
that no person shall be held in slavery or servitude. It further
provides that no person shall be subject to forced labour or to tied
labour that amounts to servitude.

6. The right to work (cont)
(b) The Employment Act, 2000
Section 4 (1) of the Employment Act reiterates what is stated in
Section 27 (3) of the Constitution as follows:
(1) No person shall be required to perform forced labour.
(2) Any person who exacts or imposes forced labour or causes or
permits forced labour shall be guilty of an offence and liable to a
fine of K10,000 and to imprisonment for two years.

7. Forced labour (cont)
Section 3 of the Employment Act defines the forced labour as any
work or service which is exacted from any person under the
menace of penalty and for which the said person has not offered
himself voluntarily.
Article 2 (1) of the ILO Convention 1930 (No. 29) provides a
similar definition by stating that:
“For the purposes of this Convention the term “forced or
compulsory labour” shall mean all work or service which is
exacted from any person under the menace of any penalty and for
which the said person has not offered himself voluntarily”.

8. Exceptions
Forced labour will not be imputed in the following situations:
(a) Any work or service exacted in virtue of compulsory military
service laws for work of a purely military character;
(b) Any work or service which forms part of the normal civic
obligations of the citizens of a fully self-governing country;
(c) any work or service exacted from any person as a consequence
of a conviction by a competent court of law;

9. Exceptions (cont)
(d) Any work or service exacted in cases of emergency;
(e) Minor communal services of a kind which, being
performed by the members of the community in the direct
interest of the said community.

10. 3. Non-discrimination
Section 5 of the Employment Act prohibits all forms of discrimination at the
work place based on prohibited characteristics such as race, sex, gender, tribe,
religion or any other status.
Section 5 of the EA incorporates Section 20 of the Constitution which states as
follows:
“Discrimination of persons in any form is prohibited and all persons are, under
any law, guaranteed equal and effective protection against discrimination on
grounds of race, colour, sex, language, religion, political or other opinion,
nationality, ethnic or social origin, disability, property, birth or other status”.
The Constitution of Malawi does not define the term discrimination.

11. Non-discrimination (cont)
The United Nations Human Rights Committee (HRC), in its
General Comment No. 18 entitled “Non-Discrimination”,
defined discrimination as:
“Any distinction, exclusion or preference which is based on
any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property,
birth or other status, and which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise
by all persons, on an equal footing, of all rights and
freedoms.

12. Types of discrimination
(a) Direct discrimination
Direct discrimination at work occurs where someone is treated less
favourably than others because of:
- a protected characteristic they possess e.g gender, colour, sex, race
- a protected characteristic of someone they are associated with; and
- a protected characteristic they are thought to have.
Direct discrimination in all its four forms could involve a decision not to
employ someone, to dismiss them, withhold promotion or training, offer
poorer terms and conditions or deny contractual benefits because of a
protected characteristic
Smith and Others -v- UK [1999] IRLR 734; 88 EOR49, ECHR

13. Non-discrimination (cont)
(b) Indirect discrimination
• This types of discrimination is rather subtle and hence very difficult to be
noticed.
• In law, it is where a ‘provision, criterion or practice’ involves, but not limited
to, these four things:
i. The ‘provision, criterion or practice’ is applied equally to a group
of employees/job applicants, only some of whom share a certain
protected characteristic.
ii. it has (or will have) the effect of putting those who share the
protected characteristic at a particular disadvantage when
compared to others without the characteristic in the group

14. Non-discrimination (Cont.)
iii. it puts, or would put, an employee/job applicant at
that disadvantage, and
iv. the employer is unable to objectively justify it - what
the law calls showing it to be ‘a proportionate means of
achieving a legitimate aim’.
Activity:
Identify criteria, procedures or policies in employment relations
that may result in indirect discrimination.

15. (c) Harassment
• Harassment has been described as an unwanted conduct against
an employee and must be related to protected characteristics or
of sexual nature e.g. sex, gender, sexual orientation e.t.c.
• It must also have the purpose or effect of violating a person’s
dignity or creating an intimidating, hostile, degrading,
humiliating or offensive environment for them.
T.K vs Mota Engil Engenharia E Construcao S.A. Civil Cause
Number 219 OF 2017

16. Types of discrimination (cont)
(d) Victimisation
• Victimisation is when an employee suffers what the law terms a
‘detriment’ - something that causes disadvantage, damage, harm or
loss.
• A ‘detriment’, for example, might include the employee being
labelled a ‘troublemaker’, being left out and ignored, being denied
training or promotion, or being made redundant because they hold
divergent views.

17. Must read cases
Banda v Dimon (Malawi) Ltd, Civil Cause No. 1394 of 1996
Nazombe v Malawi Electoral Commission, Matter No. IRC 320 of 2002.
Kaunda v Tukombo Girls Secondary School, Matter No. IRC 11 of 2005
University Workers Trade Union v Council of the University of Malawi, Matter
No. IRC 46 of 2003
Christopher Makileni v Attorney General, MATTER NO. IRC 55 OF 2015

18. 4 fair and safe labour practices
The right to safe and fair labour practices is one of the
fundamental principles in labour relations in Malawi.
It is enshrined in the Constitution of Malawi under
Section 31 of the Constitution which provides as follows:
(1) Every person shall have the right to fair and safe
labour practices and to fair remuneration.

19. Fair labour practices (cont)
The Constitution does not define fair labour practices; therefore
courts have always resorted to decided cases which have
interpreted fair labour practices as “conduct that is even handed,
reasonable, acceptable and expected of on the stand point of the
employer, employee and all fair minded persons looking at
unique relationship between the employer and employee and
good industrial and labour relations”
(Makileni v Attorney General, Matter No. IRC 55 of 2015).
See also: Kalinda v Limbe Leaf Tobacco Ltd, Civil Cause No. 542
of 1995

20. Fair labour practices (cont)
In Kankhwangwa and others v Liquidator Import and Export (Mw) Ltd,
MSCA Civil Appeal Number: 4/2004:
The Malawi Supreme Court of Appeal held that it was unfair to order
the respondent company in liquidation to repatriate its former
employees to their home district after termination of their
employment contracts.
In the circumstances; fairness applies to both the employee and
employer.

21. Factors that constitute unfair labour practices
Factors that amount to unfair labour practices are not exhaustive and largely determined on a case by
case basis.
However, the following conduct are considered unfair labour practices:
- Dismissal without justifiable reasons.
- Dismissal without affording the employee the right to be heard.
- Discrimination based on prohibited grounds.
- Dismissing an employee on the grounds that he participated in a strike.
- Retrenchment without consultation.
- Suspension without pay.
- Demotion without justifications
Nazombe v MEC (supra)
Banda v Mimon Company Malawi Ltd (supra)
Kaunda v Tukombo Girls Secondary School (supra)

22. 5. Freedom of association
Freedom of association is the benchmark for labour relations which
permits workers to organise and advocate for improvement of their
economic, social, psychological and physical well-being as employees.
a. The Constitution
Section 32 of the Constitution grants the right to freedom of
association as follows:
1. Every person shall have the right to freedom of association, which
shall include the freedom to form associations.
2. No person may be compelled to belong to an association.

23. Freedom of Association (cont)
Section 4 of the Labour Relations Act incorporates the
Constitutional provisions under Section 32 (1) by
stipulating that “every person has the right to freedom
of association, which shall include the freedom to
establish and join organisations of his or her choosing”
An employer is under obligation to respect his
employee’s right to join any organisation that advocate
for labour rights without fear of reprimand.
The employee shall not be dismissed on the grounds of
participation in union activities.

24. Conclusion
The principles discussed form the minimum standard in
which labour law operates.
The fundamental principles of labour law are flexible and
continue to evolve in reaction to the prevailing labour
relations situation.
Reflection
outline additional principles which you consider form part of
the fundamental principles of labour law in Malawi.