Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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

The Committee notes the observations of the International Organisation of Employers (IOE) received on 25 August 2022, which reproduce the statements made in June 2022 before the Conference Committee on the Application of Standards (CAS) by the Employer spokesperson and the national employers’ representative, as well as the observations of the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF), received on 1 September 2022.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 110th Session, May–June 2022)

The Committee notes the detailed discussion which took place at the 110th Session of the CAS in May–June 2022 concerning the application of the Convention by Malawi, as well as the conclusions adopted. The Committee notes with interestthe prioritization by Malawi of the follow-up to be given to the CAS conclusions and the Committee’s comments. It also notes the multidisciplinary technical assistance provided by the ILO Decent Work Team for Eastern and Southern Africa (DWT-Pretoria) and the ILO Country Office for Zambia, Malawi and Mozambique (CO-Lusaka) in July and August 2022.

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. In its previous comment, the Committee made various requests following allegations of gender-based violence and harassment (including rape and sexual harassment) occurring in tea plantations and macadamia nut orchards.

The Committee takes note that the CAS 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 the 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 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.

Evaluation of the existing legal framework on sexual harassment and its alignment with the Convention. The Committee notes the Government’s indication in its report that a review of the existing legal and policy frameworks on sexual harassment in the tea sector covering existing gaps, scope of application, protection and prevention, enforcement and remedies, guidance, training and awareness-raising is being finalized with the technical assistance of the ILO and the results will be shared with the Committee. The Government also provides information about an agreement reached with the social partners to amend the Gender Equality Act (GEA) of 2013 in order to explicitly include hostile work environment in the definition of sexual harassment. Moreover, the inclusion of legal provisions on sexual harassment in the Employment Act, 2000 and the Occupational Safety Health and Welfare Act, 1997, is under consideration. In this last respect, the Committee refers to its detailed comments under the Occupational Safety and Health Convention, 1981 (No. 155), the Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187) and the Safety and Health in Agriculture Convention, 2001 (No. 184). Recalling that sexual harassment is a serious manifestation of sex discrimination, the Committee emphasizes that the review of the legal and policy framework on sexual harassment should take place in the context of a broader review of the legal and policy framework on discrimination in general.

Regarding the amendment of section 6(1) of the Gender Equality Act of 2013 to ensure that the term “reasonable person” in the definition of sexual harassment no longer refers to the harasser, but to an outside person, the Committee notes the Government’s explanation that, under Malawian law, the term “reasonable person” provides an objective test that goes beyond the harasser. The Committee considers that the test of “reasonableness” gives inadequate weight to the experience of the victim. It recalls that sexual harassment includes: (1) (quid pro quo): any physical, verbal or non-verbal conduct of a sexual nature and other conduct based on sex affecting the dignity of women and men, which is unwelcome, unreasonable, and offensive to the recipient; and a person’s rejection of, or submission to, such conduct is used explicitly or implicitly as a basis for a decision which affects that person’s job; and (2) (hostile work environment): conduct that creates an intimidating, hostile or humiliating working environment for the recipient. The lived experience of the recipient, that is to say the victim of sexual harassment, and the impact that third party’s conduct has on her/him should thus form the basis of any assessment aimed at ascertaining whether or not sexual harassment occurred.

Tripartite discussion on the issue of sexual harassment and violence in the workplace. The Government also indicates that the question of sexual harassment has been included on the agenda of the Tripartite Labour Advisory Council (TLAC), which is expected to provide direction on how the Ministry of Labour’s role in addressing violence and harassment in the workplace can be strengthened.

Capacity-building and awareness-raising on sexual harassment. The Committee notes that the Malawi Human Rights Commission (MHRC) is developing a model sexual harassment workplace policy with a view to promoting the adoption of sexual harassment policies and preventing the occurrence of sexual harassment in both the public and private sectors. At the same time, the Department of Human Resource Management and Development continues to promote the adoption of sexual harassment workplace policies in the public sector. The Committee furthermore notes that the MHRC undertook a situation analysis on engaging the private, public, and informal sector on addressing sexual gender-based violence (SGBV) and sexual harassment in the workplace. The analysis revealed that there is little knowledge about sexual harassment among enforcement officials, journalists and members of cooperatives, which hinders the realization of rights by victims as well as their access to justice. Consequently, the MHRC is developing an action plan to enhance awareness and build capacity to address sexual harassment effectively. The Government also indicates that the Ministry of Gender, Children, Community Development and Social Welfare conducted training sessions for police officers, chiefs (traditional leaders), court officials and the media on the enforcement of the Gender Equality Act. In addition, the Government, in cooperation with the ILO, has planned to organize a strategic compliance workshop for all labour inspectors with a view to strengthening their capacity to prevent, identify and address cases of violence and sexual harassment in employment and occupation.

Access to judicial and quasi-judicial mechanisms and legal remedies for victims of discrimination, including sexual harassment. The Government states that action is being taken to enhance collaboration between all stakeholders – namely, the Ministry of Gender and the Ministry of Labour, the social partners, the courts, the MHRC, the police and relevant civil society organizations – with a view to addressing challenges related to access to legal remedies, as well as to enhancing cooperation with the social partners and relevant civil society organizations for the purpose of sharing information in order to jointly address these challenges. The Government also indicates that the Malawi Congress of Trade Unions (MCTU) has conducted investigations into alleged cases of workplace violence and harassment and reported them to the MHRC for action. The MHRC recorded 23 cases of sexual violence and harassment between January 2021 and April 2022. The Committee notes that no details are provided on the actions being taken to address challenges related to access to legal remedies or on the challenges identified. The Committee recalls that a number of obstacles may in practice impede victims’ access to justice, including lack of an appropriate legal framework, lack of awareness of rights, lack of confidence in or absence of practical access to procedures, fear of reprisals, issues related to representation and standing, the burden of proof, fear of victimization or physical, financial and linguistic obstacles, such as procedural costs and the lack of physical access to the remedial mechanisms when those are located only in main urban centres (see 2012 General Survey on the fundamental Conventions, paragraphs 870 and 884). The Committee also recalls that allowing trade unions to bring complaints is important as it reduces the risk of reprisals and is also likely to serve as a deterrent to discriminatory action (see 2012 General Survey on the fundamental Conventions, paragraph 886).

The Committee notes that, in its observations, the IUF refers to statements by different parties acknowledging that cases of trading sex for favours, or even for work, are found in the tea estates and are one of the factors contributing to the transmission of HIV and AIDS at work. The IUF also reports that the case filed by a London-based law firm on behalf of Malawian women alleging that they had been subjected to gender-based violence and harassment (including rape and sexual harassment) on tea plantations and macadamia nut orchards was settled out of court on a confidential basis without admission of liability. The Committee notes that, according to the IUF, sexual harassment on Malawi’s plantations is an endemic problem. The IUF states that it appreciates the Government’s commitment to addressing gender-based violence and harassment and other forms of discrimination in the workplace working closely with the social partners. It shared its concern about the lack of data on the effectiveness of the Malawian court system to deal with cases of sexual harassment. The IUF emphasized that trade unions must be actively involved in the design, negotiation, implementation and monitoring of any policies to eliminate gender-based violence and harassment in the world of work and clearly indicated its commitment to take part in any relevant and dedicated tripartite meetings in Malawi. Furthermore, it underscored the need for independent research on the causes of gender-based violence and harassment on Malawi’s tea plantations, including work arrangements and non-standard forms of work which make women vulnerable.

The Committee notes that, in its response to the IUF’s observations, the Government refers to several cases of sexual harassment addressed by the courts. The Government also reiterates its commitment to engage with workers’ and employers’ organizations to address sexual harassment and violence. It furthermore indicates that, once the findings of the “review of the existing legal and policy frameworks on sexual harassment in the tea sector” are validated with the relevant stakeholders, including the social partners, it hopes to use them to strengthen the policy and legislative framework on violence and harassment in all sectors of the economy in general and in the tea sector in particular. Should the report prove insufficiently comprehensive, the Government will request further ILO assistance.

The Committee notes that the African Commission on Human and Peoples’ Rights (ACHPR) recommended that Malawi “should take steps to pass a law against sexual harassment” (Concluding Observations and Recommendations, adopted at the 70h session of the ACHPR, 2022, paragraph 86).

While welcoming the initiatives undertaken by the Government to strengthen the national legal and policy framework on sexual harassment at work, the Committee remains concerned by the alleged pervasiveness of the problem, especially on plantations, and requests the Government to develop a detailed road map, in cooperation with the social partners, outlining key actions and a precise timeline in order to allow for monitoring and evaluating progress. In particular, it requests the Government:

• (i)to move expeditiously towards the 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”, and to provide information on all developments in this respect as well as on the results and recommendations of the evaluation exercise undertaken;
• (ii)to supply details on the action being taken to address challenges related to access to legal remedies for victims of discrimination in employment and occupation, including sexual harassment, in collaboration with the social partners and other relevant stakeholders, including information on the challenges identified;
• (iii)to step up its efforts to increase the capacity of the competent authorities, including labour inspectors, to prevent, identify and address cases of discrimination in employment and occupation, including sexual harassment, as well as workers’ awareness of available remedies, to 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 Government is also asked to provide information on the action plan on awareness-raising being developed by the MHRC;
• (iv)to continue to promote social dialogue on the issue of sexual harassment at work and how best to prevent and address it in practice, and to provide information on any recommendation formulated by the Tripartite Labour Advisory Council (TLAC) in this respect and the steps taken as a result, including information on any action taken by the TLAC to promote the adoption of a sexual harassment workplace policy and the directions provided on how the Ministry of Labour’ s role in addressing violence and harassment in the workplace can be strengthened, or information on the timeline for discussing the adoption of these directions;
• (v)to provide information on the uptake of the model Sexual Harassment Workplace Policy developed by the MHRC and its impact; and
• (vi)to continue to supply information on relevant initiatives by the Malawi Human Rights Commission and the Department of Human Resources Management and Development.

The Committee also encourages the Government to consider undertaking a study, in cooperation with workers’ and employers’ organizations, on the underlying causes and risk factors for sexual harassment at work, placing the problem within the broader context of discrimination with a special focus on tea plantations and macadamia nut orchards, in order to design an appropriate strategy to tackle the problem at its roots.

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