Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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

Malawi (ratification: 1965)

The Committee notes the observations of the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) received on 30 August 2021 concerning women workers on tea plantations and in agriculture.

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. In its previous observation, the Committee asked the Government to: (1) amend section 6(1) of the Gender Equality Act (GEA) 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; (2) provide information on the measures adopted pursuant to section 7 of the GEA to ensure that employers have developed and are implementing appropriate policies and procedures aimed at eliminating sexual harassment in the workplace; and (3) take steps to address sexual harassment in the public service, including the provision of adequate reporting procedures, remedies and sanctions. In addition, the Committee encouraged the Government to consider conducting awareness-raising campaigns, in cooperation with workers’ and employers’ organizations, focusing specifically on sexual harassment in employment and occupation. The Committee notes that in its report the Government indicates that the Department of Human Resource Management and Development (DHRMD), in partnership with Ministry of Gender, is in the process of developing a Sexual Harassment Workplace Policy pursuant to section 7 of the GEA. In addition, the DHRMD has conducted awareness-raising campaigns on sexual harassment in some ministries, departments and agencies, such as agriculture, defence, competition and fair trade, and district councils. The Committee also notes from the submissions of the Working Group on the Universal Periodic Review (UPR) carried out under the auspices of the United Nations, that the National Human Rights Commission stated that violence against women continues to resurface in the county (A/HRC/WG.6/36/MWI/3, 28 February 2020, paragraph 6).

The Committee notes from the observations of the IUF that, on 6 April 2021, the National Human Rights Commission announced that it would embark on an exercise to audit all public and private institutions on their compliance with the provisions of the GEA and ensure that they have workplace policies on sexual harassment. The IUF also states that, in December 2019, a London-based law firm filed a case on behalf of 36 Malawian women alleging that they had been subjected to gender-based violence and harassment (including rape and sexual harassment) while working on tea estates in Mulanje and Thyolo districts. In March 2021, the same law firm filed another complaint in London’s High Court concerning 22 instances of sexual harassment, 13 instances of sexual assault, 11 instances of coerced sexual relations and 10 instances of rape on tea plantations and macadamia nut orchards in southern Malawi. These alleged cases happened between 2014 and 2019. The IUF states that the Malawian tea industry is the country’s biggest private sector employer, employing 50,000 workers, of whom 30 per cent are women, who are mainly employed as seasonal workers. It emphasizes that the fact that the workers’ complaint was made public and dealt with through a law firm based in the United Kingdom indicates that the established procedures in Malawi at the local and national levels are inadequate for victims of gender-based violence in the workplace who are seeking to achieve justice and to ensure an end to sexual harassment on tea estates.

The IUF refers to a meeting convened on 7 April 2021 with its affiliates in Malawi to discuss these cases. Subsequently, an IUF affiliate, the Plantations and Agricultural Workers Union (PAWU), met the Tea Association of Malawi Limited (TAML) and agreed to investigate cases of sexual harassment on tea plantations. Eleven managers and supervisors who were found to be involved in sexual harassment cases were dismissed. The IUF also states that its affiliates are currently working on awareness-raising activities to tackle sexual harassment on tea plantations. According to the IUF, the existing legal framework, as well as current initiatives that aim to stop gender-based violence, are not sufficient to eradicate the systemic problem of gender-based violence and sexual harassment on tea plantations. The IUF reports that male supervisors abuse their position of power (for example, hiring rights, allocation of tasks) and use it to demand sexual favours from women and/or to commit violence, especially on women employed under seasonal, and hence precarious, contracts. The IUF believes that women workers in agriculture and other sectors are also subject to sexual harassment. Noting with serious concern the gravity of these allegations, the Committee requests the Government to provide its comments in this respect and expresses the firm hope that the Government will consider requesting technical assistance to address the matters raised by the IUF. The Committee urges the Government to: (i) undertake, in cooperation with the organizations of workers and employers, an evaluation of the existing legal framework on sexual harassment and, in particular, to amend the definition of sexual harassment in section 6(1) of the Gender Equality Act of 2013 to explicitly include hostile work environment harassment; (ii) identify the initiatives taken to date to prevent and address sexual harassment in the public and private sectors, and the procedures and remedies available to victims, with a view to identifying existing gaps and risk factors and designing effective interventions to strengthen the protection of women workers against sexual harassment; (iii) provide information on the results of the evaluation and the actions envisaged as a follow-up; (iv) increase the capacity of the competent authorities, including labour inspectors, to prevent, identify and address cases of sexual harassment in employment and occupation, including on tea plantations; (v) continue undertaking awareness-raising campaigns in collaboration with the social partners; (vi) provide information on the adoption of the Sexual Harassment Workplace Policy pursuant to section 7 of the Gender Equality Act and its implementation; and (vii) consider amending section 6(1) of the Gender Equality Act 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 is raising other matters in a request addressed directly to the Government.

[The Government is asked to supply full particulars to the Conference at its 110th Session and to reply in full to the present comments in 2022.]