The Employers Consultative Association of Malawi (ECAM) wants Section 57 (2) of the Employment Act to be amended to obligate employers to notify or consult employees when contemplating redundancy and retrenchment.
The Section stipulates that employment shall not be terminated for reasons connected with capacity or conduct before the employee is provided with an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide the opportunity. That is, when the termination is based on operational requirement.
This was revealed at a workshop ECAM held in Blantyre. Stakeholders at the workshop highlighted that the section is in conflict with article 13 and 14 of the International Labour Organisation (ILO) Convention 158 which recommends that an employer notifies competent authorities when contemplating termination of employment.
Malawi ratified the convention on October 1, 1986.
ECAM president Emmanuel Banda said the association has not yet made its decision on the matter as it is still consulting.
He said through information sharing, views will be solicited for an input in the proposal.
The issue of amending section 57 (2) came in the light in 2015 when members of a Trade Union petitioned members of Parliament to amend the section following conflicting judgements after the Act was amended in 2010.
In March same year, the Parliamentary Committee on Social and Community Affairs wrote the association seeking its views on the petition.
According to Banda, while consultations on the amendment still continue, Ecam believes that any amendment of the law should be comprehensive and not only focus on Section 57 (2) of the Employment Act.
“We believe however the amendment should not be a constraint to doing business but must foster a conducive environment for industrial relations with an aim of achieving productivity and competitiveness,” he suggested.
In her presentation, entitled ‘Dealing with retrenchment and redundancies. The Employer’s perspective,’ Justice Rachael Sikwese, executive director of the Labour Laws Services called on employers to be familiar with labour laws to avoid losing a lot of money in payments following court disputes due to wrong decisions.
“Employers need to avoid shortcuts when making sensitive decisions such as retrenchments and redundancies, make sure you are able to defend your decision failing which you may end up losing huge sums of money in court,” she said.
She highlighted that the constitution does not provide for payment of severance allowance or any compensation to the employer in case of takeovers or transfer of companies from one employer to another as long as there is no loss of job.
“As long as there is no job loss, there is no need for any terminal benefit. Even if there is a change of company name the key is whether or not there is termination of employment,” she said.
Human Resources Specialist Justice Matonga in his presentation entitled ‘Collective Bargaining Rights; Engagement of Employers and Workers at Enterprise level,’ called on employers to develop a good working relationship with their employees.
He describe collective bargaining as a whole mark of industrial development adding that sour relationships between employer and employee minimises productivity.
After soliciting views from its members, Ecam will draft and circulate a subsequent position paper for validation amongst the advocacy and lobbying subcommittee which is chaired by its president before it is sent to the Ministry of Labour and Manpower Development.
The ministry will then invite social partners ECAM and MCTU for a consultative meeting.