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

Malawi

Occupational Safety and Health Convention, 1981 (No. 155) (Ratification: 2019)
Safety and Health in Agriculture Convention, 2001 (No. 184) (Ratification: 2019)
Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187) (Ratification: 2019)

In order to provide a comprehensive view of the issues relating to the application of ratified occupational safety and health (OSH) Conventions, the Committee considers it appropriate to examine Conventions Nos 155 (OSH), 187 (promotional framework for OSH) and 184 (OSH in agriculture) together.

The Committee notes the first reports of the Government for these Conventions.

The Committee notes the observations of the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF), received on 1 September 2022, concerning Convention No. 184, and the Government’s reply thereto. The Committee considers it appropriate to examine the content of the observations under Conventions Nos 155 and 187 as well.

Article 16(1) of Convention No. 155, Article 3(2) of Convention No. 187 and Article 18 of Convention No. 184. Employers’ obligation to ensure that workplaces are without risks to health and safety. Promotion of a safe and healthy working environment. OSH measures for women workers in agricultural undertakings. The Committee previously noted with concern the allegations of the IUF in 2021, according to which a number of women working in tea plantations and macadamia nuts orchards have been subjected to gender-based violence, including rape and sexual harassment. In its most recent observations, the IUF indicates that Malawi has failed to take measures to protect the reproductive health of women workers in agriculture and that sexual harassment on Malawi’s plantations is endemic. The IUF welcomes the proposal for technical assistance to the Government and expresses commitment to participate in any related tripartite meetings and support the participation of its affiliates.

The Committee notes that in its reply, the Government acknowledges the importance of the issues raised in the IUF’s observations and indicates that the issue will be take into account when coming up with measures for countering sexual violence and harassment cases in the agriculture sector. In addition, the Government indicates that, in the context of the ongoing review of the Employment Act and the Occupational Safety, Health and Welfare Act (OSHWA), it is examining the inclusion of legal provisions on sexual harassment. The Government also indicates that a rapid assessment on violence and sexual harassment in the tea sector was conducted, aiming to investigate the extent of sexual harassment in that sector and identify gaps in the legal and policy frameworks. The Government further indicates that the OSHWA and the Employment Act include provisions that ensure that the special needs of women agricultural workers are taken into account in relation to pregnancy and breastfeeding. The Committee recalls that, according to Article 18 of Convention No. 184, measures shall be taken to ensure that the special needs of women agricultural workers are taken into account also in relation to their reproductive health. It further recalls that the Committee on the Application of Standards (CAS) of the 110th Session (June 2022) of the International Labour Conference, in its examination of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) urged the Government to take all necessary measures, in consultation with the social partners, to ensure the effective protection of workers against sexual harassment and violence in the workplace, in law and practice. In this regard, the Committee refers to its comments under Convention No. 111. Noting with deep concern the gravity of these allegations, it requests the Government to take further effective measures to advance the right of agricultural workers to a safe and healthy working environment and to ensure that the special needs of women agricultural workers are taken into account, specifically in relation to reproductive health. It requests the Government to provide detailed information on the measures taken, and the impact of these measures.

A.General Provisions

I.Action at the national level

Article 1 of Convention No. 155. Scope. The Committee notes the Government’s indication in its report that the Convention applies to all categories of workers in all branches of economic activity. However, the Government indicates that the OSHWA, which is the main implementing legislation, does not cover some sectors of the economy, such as the service sector. The Government indicates that the definition of “workplace” provided for in section 3 means the Act only applies to some undertakings, but not to others, such as shops, educational institutions, banks, health facilities and offices. The Committee notes that the ongoing review of the OSHWA is taking into consideration the definitions provided for in Article 3 of the Convention so that all workers and all branches of the economy are covered. The Committee requests the Government to indicate whether the branches excluded under the OSHWA are thus excluded from the protection afforded by Convention No. 155. If so, it requests the Government to provide information regarding the consultations held with the social partners in that connection, as well as the measures taken to ensure adequate protection for workers working in these branches, including in the context of the ongoing review of the OSHWA.

Article 2(2) of Convention No. 187.Taking into account the principles set out in relevant ILO instruments. The Committee requests the Government to provide information on the manner in which the principles set out in ILO instruments relevant to the promotional framework for OSH have been taken into consideration in the steps taken towards achieving progressively a safe and healthy working environment.

Article 2(3) of Convention No. 187. Measures that could be taken, in consultation with social partners, to ratify relevant OSH Conventions of the ILO. The Committee notes the Government’s indication that discussions to possibly ratify the Occupational Health Services Convention, 1985 (No. 161) and the Safety and Health in Mines Convention, 1995 (No. 176) have been taking place in various forums, but that formal consultations have not yet started.The Committee requests the Government to continue to provide information on the manner in which consideration is given to what measures could be taken to ratify relevant OSH Conventions, including information on consultations undertaken on the ratification of Conventions No. 161 and No. 176.

National Policy

Articles 4 and 7 of Convention No. 155 and Article 3(1) of Convention No. 187. Formulation, implementation and periodic review of a national policy on OSH in consultation with social partners. The Committee notes that the National OSH Policy on has been drafted with the support of the ILO. The draft National OSH Policy was validated on 18 May 2022 and is awaiting Cabinet approval. The Committee takes note of the information provided by the Government on the elaboration of the draft National OSH Policy, including the consultative process with the representatives of employers’ and workers’ organizations (the Malawi Congress of Trade Unions and the Employers Consultative Association of Malawi) and other stakeholders including governmental Ministries, Departments and Agencies, non-governmental organizations and civil society organizations. In this respect, the Government indicates that a special Technical Committee was established to incorporate the comments from consultative meetings into the main document. The Committee notes the Government’s indication that the draft National OSH Policy states that the Government, through the Ministry of Labour will, in consultation with the most representative organizations of employers and workers, periodically review the policy every five years or as deemed appropriate based on a series of conditions that may necessitate its review. Furthermore, the Committee notes that the Government developed a National OSH Profile in 2020 which will serve as a national OSH data baseline and is expected to be updated every five years. The Committee requests the Government to provide information on the progress made in the adoption of the National OSH Policy and to provide a copy once it has been adopted. It also requests the Government to provide information on the subsequent measures taken to ensure its periodic review, at regular intervals and in consultation with the most representative workers’ and employers’ organizations concerned, as well as on the other measures taken to review the OSH situation at appropriate intervals.

National system

Article 8 of Convention No. 155 and Article 4(1), (2)(a) and 3(a) of Convention No. 187. Legal and regulatory framework in respect of OSH and periodic review of the national system. National tripartite advisory body, or bodies, addressing OSH issues. The Committee notes the information provided by the Government regarding the legislative framework on OSH in the country.The Government indicates that it has a national system comprised by the OSHWA and other Acts relating to OSH but points to a lack of regulations, guidelines, and codes of practice to operationalize the OSHWA. The Committee notes the efforts of the Government to improve its national legislation in collaboration with the social partners and stakeholders through a series of legislative reviews and the drafting of new OSH regulations. In this respect, the Committee notes that the Government is currently reviewing the OSHWA and is developing six regulations under the Act concerning hazardous substances, medical examinations, first aid, safety committees, pressure vessels and the list of occupational diseases. The Committee notes that, due to the absence of a tripartite advisory body with direct responsibility for OSH, the responsibility for the periodic review of national legislation, policies and actions on OSH is with the Tripartite Labour Advisory Council (TLAC). The review process involves consultations between the OSH Directorate of the Ministry of Labour and representatives of employers’ and workers’ organizations, as well as technical drafting inputs from other governmental Ministries, Departments and Agencies. The Committee notes that, apart from the TLAC, in the context of the ongoing review of the OSHWA, the Government envisages setting up a national advisory committee on OSH that shall specifically be responsible for monitoring and advising on the operationalization of OSH legislation. The Committee requests the Government to continue to provide information on the developments with regards to the ongoing reform of the national OSH legislation and to provide copies of the relevant texts once adopted. The Committee also requests the Government to continue to provide information on the manner in which it periodically reviews its national OSH system, and on how the most representative organizations of employers and workers are consulted in this regard. In this respect, it requests the Government to provide information on progress achieved in setting up a national advisory committee on OSH.

Article 11(e) of Convention No. 155. Annual publication of information on the measures taken in pursuance of the national policy.The Committee notes that although the Government provides statistical information related to OSH (accidents and compensation), it does not provide information on the effect given to Article 11(e) regarding the annual publication of this information or on the measures taken in pursuance of the national OSH policy. The Committee requests the Government to provide information on the measures progressively taken to give full effect to Article 11(e).

Article 11(f) of Convention No. 155. Systems to examine chemical, physical and biological agents in respect of the risk to the health of workers. The Committee notes that according to the Environmental Management Act, the Environment Protection Authority shall establish criteria for the classification of toxic and hazardous substances and waste in accordance with their toxicity and the hazards they present to human health and the environment. The Committee requests the Government to indicate whether such criteria have been established by the Environmental Protection Authority, and if so to provide copies of the relevant texts.

Article 15(1) of Convention No. 155. Necessary coordination between various authorities and bodies. The Government indicates that the draft National OSH Policy aims at ensuring the reinforcement of the capacity of competent OSH authorities and increased collaboration between them. The Committee notes that,although the draft National OSH Policy provides for functions and responsibilities for various institutions, including the Ministry of Labour, the Ministry of Agriculture, and the Ministry of Health, the Government does not provide information on the mechanisms allowing collaboration between them. The Committee requests the Government to indicate the manner in which it ensures appropriate coordination between the OSH Directorate of the Ministry of Labour and other relevant bodies and authorities(i.e. Ministry of Health, Ministry of Agriculture, environmental authorities, etc.) responsible for giving effect to the Convention at the national level.

Article 4(3)(h) of Convention No. 187. Support mechanisms for a progressive improvement of OSH conditions in micro-enterprises, in small and medium-sized enterprises and in the informal economy. The Committee requests the Government to provide information on the existing or envisaged support mechanisms, including in the context of the draft National OSH Policy, for progressively improving OSH conditions in micro-enterprises, small and medium-sized enterprises and the informal economy.

National programme

Article 5(1), (2) and (3) of Convention No. 187. National OSH Programme. The Committee notes that the Government does not currently have a National OSH Programme. The Government indicates that, following the development of its National OSH Profile in 2020, it aims to review the previous 2011-2016 National OSH Programme.The Committee requests the Government to take the necessary measures to establish a national OSH programme in accordance with the requirements of Article 5(1) and (2). The Committee also requests the Government to provide information on these measures, on the employers’ and workers’ organizations consulted, and on the outcome of these consultations.It further requests the Government to take measures to ensure that the programme will be widely publicized, endorsed and launched by the highest national authorities, as provided in Article 5(3).

II.Action at the level of the undertaking

Article 17 of Convention No. 155. Duty of collaboration between two or more undertakings engaging in activities simultaneously at one workplace. The Committee notes the Government’s reference to section 3(3) of the OSHWA, which, through defining what can be considered as workplace, provides for the duty of collaboration between two or more occupiers specifically in relation to lines and sidings that are not part of a railway. It is noted that this duty is not provided for in relation to other workplaces in general. The Committee notes the Government’s indication that it aims to take into account the duty established under this Article in the context of the ongoing review of the OSHWA. The Committee requests the Government to indicate the measures taken, including in the context of the ongoing review of the OSHWA, to ensure that, each time two or more enterprises undertake activities simultaneously at one workplace, there is collaboration between the undertakings engaged in the activities, in accordance with Article 17.

Article 19(d) of Convention No. 155. Appropriate OSH training provided to workers’ representatives. The Committee notes that the OSHWA gives effect to Article 19(d) with respect to the training of workers. Recalling that pursuant to Article 19(d) of the Convention, there shall also be arrangements for the representatives of workers to be provided with appropriate training in OSH, the Committee requests the Government to provide information on measures taken to ensure that such representatives are provided with appropriate training on OSH.

Article 19(e) of Convention No. 155. Inquiries by workers and their representatives, and their consultation on all aspects of OSH. Involvement of technical advisers by mutual agreement. The Committees notes that the OSHWA provides for mechanisms of collaboration between employers and employees in safeguarding safety and health (safety representatives, safety committees), and the general duty for collaboration. The Committee requests the Government to provide further information on the manner in which it is ensured that workers or their representatives or representative organizations in an undertaking are enabled to inquire into and are consulted by the employer on all aspects of OSH associated with their work, and particularly on their right to bring in technical advisers, by mutual agreement, from outside the undertaking.

B.Protection in specific branches of activity

Safety and Health in Agriculture Convention, 2001 (No. 184)

Article 4(1), (2)(a) and (c) of the Convention. National OSH Policy in agriculture. Competent authority and coordination with other relevant authorities and bodies for the agricultural sector. Consultations with the representative organizations of employers and workers. The Government indicates in its report that the draft National OSH Policy covers all sectors, including agriculture. Furthermore, it indicates that it is currently drafting an OSH Regulation on Agriculture. The Government also provides information on the responsibilities of the OSH Directorate, the Ministry of Agriculture and organizations of workers and employers in the context of applying the policy. In its observations, the IUF indicates that the Government has failed to implement Article 4 of the Convention because it has not followed the requirements of the Convention to consult the representative organizations of employers and workers concerned and to formulate a coherent national policy on safety and health in agriculture, designate the competent authority responsible for the implementation of such policy and for the enforcement of national laws and regulations on OSH in agriculture. In its reply, the Government notes that this particular point is being raised for the first time and it acknowledges the importance of IUF’s observations. The Committee requests the Government to provide information on the provisions which specifically address safety and health in agriculture in the draft OSH policy, the policy’s implementation in the agricultural sector once adopted, and its periodic review, in consultation with the representative organizations of employers and workers concerned. It also requests the Government to provide information on the progress on the development of an OSH Regulation in Agriculture and on the manner in which the employers’ and workers’ organizations concerned have been consulted in its elaboration. The Committee further requests the Government to provide further information on the manner in which inter-sectoral coordination among the OSH Directorate of the Ministry of Labour, the Ministry of Agriculture and otherrelevant authorities and bodies for the agricultural sector is ensured.

Article 6(2). Cooperation between two or more employers or self-employed persons undertaking activities simultaneously at an agricultural workplace. The Government indicates that the on-going review of the OSHWA aims to incorporate the duty prescribed under this Article of the Convention. Referring to its comments above under Article 17 of Convention No. 155, the Committee requests the Government to provide information on the measures taken, including in the context of the ongoing legislative review of the OSHWA, to ensure that whenever two or more employers undertake activities simultaneously in an agricultural workplace, or one or more employers and one or more self-employed persons undertake activities, they shall cooperate in applying the OSH requirements.

Article 7(a).Appropriate assessments and adoption of preventive and protective measures. The Committee notes that, although section 13 of the OSHWA requires every employer to provide arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage and transportation of articles and substances, it does not explicitly provide for the duty of the employer to carry out risk assessments. The Committee requests the Government to provide detailed information on the measures taken or envisaged, including in the context of the ongoing legislative review of the OSHWA, to ensure that employers carry out appropriate risk assessments in relation to the safety and health of workers and, on the basis of the assessments, preventive and protective measures are adopted.

Article 7(c). Obligation of employers to take immediate steps to stop any operation in the event of an imminent and serious danger to the safety and health of workers, and evacuation of workers as appropriate. The Committee notes that the OSHWA gives powers to inspectors to take immediate steps to stop any operation where there is an imminent and serious danger to safety and health, through the issuance of a prohibition notice, but there is no specific provision concerning the relevant duty of the employer as required by this Article of the Convention. The Government indicates that the ongoing review of the OSHWA aims to include such a duty. The Committee requests the Government to provide information, including in the context of the ongoing review of the OSHWA, on the measures taken or envisaged, to give effect to this provision of the Convention, including measures providing for the obligation of employers to stop any operation in the event of an imminent and serious danger to the safety and health of workers, and the evacuation of workers, as appropriate.

Article 8(1)(b). Right of workers to select safety and health representatives and to participate in the application and review of safety measures. The Committee notes that section 13(5) of the OSHWA imposes a duty on every employer to consult with safety representatives on safety and health matters. Furthermore, section 13(6) of the OSHWA, imposes a duty on the employer, if requested to do so by the safety representatives, to establish a safety committee. It further notes that according to section 13(4), the Minister may make regulations providing for: (a) the appointment by trade unions of safety representatives from amongst the employees; and (b) the election by employees of safety representatives from amongst the employees, to represent employees in consultations with the employers under subsection (5). The Committee requests the Government to provide information on the manner in which authorized employees, referred to in section 13 of the OSHWA, are selected and on their functions and rights in the undertaking. It also requests the Government to indicate whether any regulations referred to under section 13(4) of the OSHWA have been adopted.

Article 10. Use of agricultural machinery and equipment only for work for which they are designed and their operation by trained and competent persons. The Committee notes that although the OSHWA contains provisions on the safe use of machinery and equipment, including the provision of information about the use for which it is designed, the legislation does not indicate specifically how it is ensured that such machinery is not used for human transportation. Further, while section 65 of the OSHWA requires specialised training and instruction to certain groups of workers such as operators of plants, machinery and equipment, the legislation does not specifically require that machinery and equipment be operated by trained and competent persons. The Committee requests the Government to provide information on legislative or other provisions containing: (i) the requirement that agricultural machinery and equipment shall only be used for work for which they are designed, including the prohibition to use agricultural machinery and equipment for human transportation, unless specifically designed to do so (Article 10(a)); and (ii) the requirement that agricultural machinery and equipment are operated by trained and competent persons (Article 10(b)).

Article 14. Protection against biological hazards. The Committee notes that the Government’s report does not contain information with regard to measures taken to protect against biological hazards in agriculture. The Committee requests the Government to indicate the manner in which it is ensured that risks such as those relating to infection, allergy or poisoning are prevented or kept to a minimum when biological agents are handled.

Article 16. Young workers and hazardous work. The Committee notes the Employment (Prohibition of Hazardous work for children) Order 2012 which sets out the hazardous types of work prohibited to children under 18 years of age, including activities in the agricultural sector. The Committee recalls that, under its comments on the Minimum Age Convention, 1973 (No. 138) and the Worst Forms of Child Labour Convention, 1999 (No. 182), itnoted that a high percentage of children in child labour are employed in the agricultural sector. In this respect, the Committee requests the Government to refer to its comments on the application of the Minimum Age Convention, 1973 (No. 138) and the Worst Forms of Child Labour Convention, 1999 (No. 182).

Article 19(b). Minimum accommodation standards for agricultural workers.The Government indicates that under the ongoing review of the OSHWA, it is considering, through a consultative process with the workers’ and employers’ organizations and other stakeholders, including a provision regarding the minimum accommodation standard for workers who are required by the nature of the work to live temporarily or permanently in the undertaking. The Committee requests the Government to indicate the measures taken, including in the context of the ongoing review of the OSHWA, to prescribe the minimum accommodation standards for workers who are required by the nature of the work to live temporarily or permanently in the undertaking and to supply information on consultations held with representative organizations of employers and workers concerned in this regard.

[The Government is asked to reply in full to the present comments in 2024.]