CHAPTER 55:01
EMPLOYMENT

ARRANGEMENT OF SECTIONS

   SECTION

PART I
PRELIMINARY

   1.   Citation

   2.   Application

   3.   Interpretation

PART II
FUNDAMENTAL PRINCIPLES

   4.   Prohibition against forced labour

   5.   Anti-discrimination

   6.   Equal pay

   7.   Remedies for infringement of fundamental rights

PART III
ADMINISTRATION

   8.   The Labour Commissioner and labour officers

   9.   Powers of labour officers

   10.   Labour officer to notify employer of his presence

   11.   Free access and assistance to a labour officer

   12.   Prohibition against victimization

   13.   Prohibition against revealing secret information

   14.   Prohibition against conflict of interest

   15.   Assistance to small enterprises

   16.   Reports

   17.   Annual general report

   18.   Content of the annual general report

   19.   Identity card

   20.   Obstruction, etc., of labour officers

PART IV
EMPLOYMENT OF YOUNG PERSONS

   21.   Prohibition against child labour

   22.   Hazardous work

   23.   Register of young persons

   24.   Offences against this Part

PART V
CONTRACTS

   25.   Types of contracts

   26.   Probationary period

   27.   Particulars of employment

   28.   Termination of contracts

   29.   Notice of termination of contracts

   30.   Payment in lieu of notice

   31.   Certificate of termination

   32.   Transfer of contract

   33.   Death of employer

   34.   Insolvency of employer

   35.   Severance allowance

   35A.   Gratuity

PART VI
HOURS OF WORK, WEEKLY REST AND LEAVE

   36.   Normal working hours, weekly rest, etc.

   37.   Maximum daily working hours

   38.   Exemption

   39.   Overtime

   40.   Payment for working on public holiday

   41.   Continuous employment

   42.   Successor employer

   43.   Seasonal employment

   44.   Annual leave

   45.   Date of leave

   46.   Sick leave

   47.   Maternity leave

   48.   Right to return

   49.   Termination related to pregnancy

PART VII
WAGES

   50.   Payment of wages

   51.   Pay statement and record keeping

   52.   Prohibition related to payment of remuneration

   53.   Payment of remuneration on termination of employment

   54.   Setting of minimum wages

   55.   No abatement of minimum wages

PART VIII
DISCIPLINE AND DISMISSAL

   56.   Disciplinary action

   57.   Justification for dismissal

   58.   Unfair dismissal

   59.   Summary dismissal

   60.   Constructive dismissal

   61.   Proof of reason for dismissal

   62.   Complaints of unfair dismissal

   63.   Remedies for unfair dismissal

PART IX
MISCELLANEOUS PROVISIONS

   64.   Disputes and complaints

   65.   Handling of complaints

   66.   Offences and penalties

   67.   Regulations

   68.   Repeals and savings

   69.   Transitional

6 of 2000
27 of 2010
G.N. 47/2000
2/2002
24/2004
11/2011

An Act to establish, reinforce and regulate minimum standards of employment with the purpose of ensuring equity necessary for enhancing industrial peace, accelerated economic growth and social justice and for matters connected therewith and incidental thereto

[1ST SEPTEMBER 2000]

PART I
PRELIMINARY

1.   Citation

   This Act may be cited as the Employment Act.

2.   Application

   (1) Subject to subsection (2), this Act applies to the private sector and the Government, including any public authority or enterprise.

   (2) This Act does not apply to members of the armed forces, the prisons service or the police, except those employed in a civilian capacity.

3.   Interpretation

   In this Act, unless the context otherwise requires—

   “Commissioner” means the Labour Commissioner appointed pursuant to section 8;

   “Court” means the Industrial Relations Court established under section 110 (2) of the Constitution;

   “employee” means—

   (a)   a person who offers his services under an oral or written contract of employment, whether express or implied;

   (b)   any person, including a tenant share cropper, who performs work or services for another person for remuneration or reward on such terms and conditions that he is in relation to that person in a position of economic dependence on, and under an obligation to perform duties for, that person more closely resembling the relationship of employee than that of an independent contractor; or

   (c)   where appropriate, a former employee;

   “employer” means—

   (a)   any person, body corporate, undertaking, public authority or body of persons who or which employs an employee and includes heirs, successors and assignees of the employer; or

   (b)   where appropriate, a former employer;

   “forced labour” means any work or service that is exacted from any person under the threat of any penalty and is not offered voluntarily, but does not include—

   (a)   any compulsory military service or work of a purely military character;

   (b)   any work or service that forms part of the normal communal or civil obligations of citizens of Malawi;

   (c)   any work or service exacted from a person as a consequence of a conviction by any court:

   Provided the person is not hired by or placed at the disposal of a private individual, company or association and the work or service is carried out under the supervision and control of a public authority;

   (d)   any work or service exacted in emergency situations where the life or well being of the whole or part of the population is endangered, but only to the extent that the requiring of such labour is reasonably justifiable in the circumstances; or

   (e)   minor communal services of a kind performed by members of the community in the direct interest of the community:

   Provided that the members of the community have been consulted concerning the need for such services;

   “industrial undertakings” mean—

   (a)   mines, quarries and other works for the extraction of minerals;

   (b)   undertakings in which articles are manufactured, altered, cleaned, ornamented, finished, adapted for sale, broken up or demolished, or in which materials are transformed, including undertakings engaged in food processing, agro-processing activities, ship building or in the generation, transformation or transmission of electricity or motive power of any kind; or

   (c)   undertakings engaged in building and civil engineering work, including constructional, repair, maintenance, alteration and demolition work;

   “labour officer” includes the Commissioner, Regional Labour Officer and District Labour Officer;

   “remuneration” means the wage or salary and any additional benefits, allowances or emoluments whatsoever payable, directly or indirectly, whether in cash or in kind, by the employer to the employee and arising out of the employee’s employment;

   “wage” means all earnings, however designated or calculated, capable of being expressed in terms of money and fixed by mutual agreement or by law, which are payable by virtue of a written or unwritten contract of employment by an employer to an employee for work done or to be done or for service rendered or to be rendered.

PART II
FUNDAMENTAL PRINCIPLES

4.   Prohibition against forced labour

   (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.

5.   Anti-discrimination

   (1) No person shall discriminate against any employee or prospective employee on the grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth, marital or other status or family responsibilities in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment relationship.

   (2) Subsection (1) does not preclude any provision, programme or activity that has as its object the improvement of conditions of disadvantaged persons, including those who are disadvantaged on the grounds enumerated in subsection (1).

   (3) Any person who contravenes this section shall be guilty of an offence and liable to a fine of K10,000 and to imprisonment for two years.

6.   Equal pay

   (1) Every employer shall pay employees equal remuneration for work of equal value without distinction or discrimination of any kind, in particular, on basis of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth, marital or other status or family responsibilities.

   (2) Where a violation of subsection (1) is alleged, the employer shall bear the burden of proving that there was no violation.

7.   Remedies for infringement of fundamental rights

   Where a complaint alleging infringement of rights contained in this Part has been proved, the Court shall make such order as it deems necessary to ensure compliance with the provisions of this Part, including an order for reinstatement of an employee, the restoration to him of a benefit or advantage and an order for the payment of compensation.

PART III
ADMINISTRATION

8.   The Labour Commissioner and labour officers

   (1) There shall be appointed in the public service an officer to be designated as the Labour Commissioner (in this Act otherwise referred to as the “Commissioner”), and other public officers subordinate to him, who shall be responsible for the effective administration and application of this Act.

   (2) Without derogating from the generality of subsection (1), the Commissioner shall be responsible for—

   (a)   inspecting places of work as often and as thoroughly as is necessary;

   (b)   supplying relevant technical information and advice to employers, employees and other persons on labour matters;

   (c)   making proposals for the periodic review of this Act;

   (d)   the making of such reports as he shall consider appropriate or as the Minister may require; and

   (e)   any other matter that shall require administration under this Act.

   (3) The Commissioner may, in writing, authorize any public officer to exercise any or all of the powers of the Commissioner, subject to such conditions, including territorial restrictions, as the Commissioner may stipulate in the authorization.

   (4) In the performance of his duties under this Act, the Commissioner shall be subject to—

   (a)   the general and special directions of the Minister; and

   (b)   for avoidance of doubt, the provisions of the Public Service Act.

   (5) This Act shall be enforced by labour officers, acting subject to the direction of the Commissioner and, for that purpose, labour officers shall have the powers set out in section 9.

9.   Powers of labour officers

   (1) A labour officer—

   (a)   may, subject to paragraph (c), enter any workplace freely and without prior notice at any hour of the day or night;

   (b)   may, subject to paragraph (c), enter by day any premises which he reasonably believes to be a workplace;

   (c)   shall not enter the private home of an employer pursuant to paragraphs (a) and (b) except with the consent of the employer or under the authority of a warrant issued by a magistrate;

   (d)   may, in general, carry out any examination, test or enquiry which he considers necessary in order to satisfy himself that the provisions of this Act or any other law relating to the employment of persons are being strictly observed and, in particular, may—

      (i)   interrogate, alone or in the presence of witnesses, the employer or the employees on any matter concerning the application of this Act and any other law relating to the employment of persons;

      (ii)   require the production of any records, books, registers or other documents, the keeping of which is prescribed by this Act or any other law relating to the employment of persons or conditions of work, in order to ensure that this Act and any other law relating to the employment of persons is being respected, and to copy such documents or take extracts there-from;

      (iii)   enforce the posting of any notices required by this Act or any other law relating to the employment of persons; and

      (iv)   take or remove, for purposes of analysis, samples of materials and substances used or handled, subject to the employer or the employer’s representative being notified of any samples or substances taken or removed for this purpose;

   (e)   may require from employers and employees information as to the remuneration, hours and conditions of work;

   (f)   may inspect any record of accidents or occupational disease kept by the employer pursuant to the provisions of the Occupational Safety, Health and Welfare Act or any other law and require from an employer information as to the causes and circumstances relating to any accident or occupational disease that may have occurred on the employer’s premises or in the course of employment;

   (g)   may be accompanied by a member of the police force if he has reasonable cause to apprehend any serious obstruction in the execution of his duty; and

   (h)   may take steps with a view to remedying defects observed in plant layout, installation or working methods which he reasonably believes constitute a threat to the health or safety of employees.

   (2) In order to enable a labour officer to take steps under subsection (1) (h), a labour officer shall have powers to make orders requiring—

   (a)   such alteration to the plant installation or layout, to be carried out within a specified time limit, as may be necessary to secure compliance with the legal provisions relating to health or safety of employees; or

   (b)   in the event of imminent danger to the health or safety of the employees, measures with immediate executory force.

10.   Labour officer to notify employer of his presence

   A labour officer shall, when on an inspection visit, notify the employer or the employer’s representative of his presence, unless the labour officer considers that such notification may be prejudicial to the performance of his duties.

11.   Free access and assistance to a labour officer

   An employer shall—

   (a)   grant an employee every opportunity and necessary facilities for communicating freely with a labour officer; and

   (b)   when so requested, afford every reasonable assistance to a labour officer.

12.   Prohibition against victimization

   No employer shall inflict a disadvantage on an employee for anything done by the employee in pursuance of the provisions of this Part.

13.   Prohibition against revealing secret information

   (1) No labour officer shall, while in office or subsequently, reveal any manufacturing or commercial secret or working process which comes to his knowledge in the course of his duties.

   (2) A labour officer shall treat as absolutely confidential the source of any complaint bringing to his notice a contravention of this Act and shall not reveal to the employer or the employer’s representative that inspection was made in consequence of the receipt of a complaint that a breach of this Act appeared to have been committed.

14.   Prohibition against conflict of interest

   A labour officer shall not have any interest, direct or indirect, in the undertakings under his supervision.

15.   Assistance to small enterprises

   In exercise of his powers, a labour officer shall take into account the size, capitalization and degree of formality of the operation of undertakings under his supervision and shall make all efforts to assist smaller and informal enterprises in understanding and complying with this Act and any other law relating to the employment of persons.

16.   Reports

   (1) A labour officer shall within thirty days of conducting an inspection submit to the Regional Labour Officer a report in respect thereof.

   (2) In addition to reports referred to in subsection (1), a labour officer shall, on such intervals as may be determined by the Commissioner but which intervals shall not be less than once a year, submit periodic reports to the Regional Labour Officer.

   (3) The Regional Labour Officer shall every three months transmit to the Commissioner the reports submitted to him pursuant to subsections (1) and (2).

   (4) The reports referred to in subsections (1) and (2) shall be drawn up in such manner and deal with such subjects as may be determined by the Commissioner.

17.   Annual general report

   (1) The Commissioner shall publish an annual general report on the work of the inspection service.

   (2) The annual report shall be published within a reasonable time after the end of the year to which it relates and, in any case, within twelve months after the end of the year.

   (3) The annual general report shall be circulated to all registered employee’s organizations and employer’s organizations.

18.   Content of the annual general report

   The annual general report referred to in section 17 shall deal with all subjects under the control of the Commissioner including—

   (a)   laws and regulations relevant to the work of the inspection service;

   (b)   staff of the labour inspection service;

   (c)   statistics of workplaces liable to inspection and the number of workers employed therein;

   (d)   statistics of inspection visits;

   (e)   statistics of violations and penalties imposed in respect of the violations;

   (f)   statistics of industrial accidents; and

   (g)   statistics of occupational diseases.

19.   Identity card

   Every labour officer shall be furnished by the Secretary responsible for labour matters with an identity card and shall, if so required in the course of exercising his duties under this Act, produce the card.

20.   Obstruction, etc., of labour officers

   Any person who—

   (a)   wilfully obstructs a labour officer in the exercise of any of the powers conferred upon him by this Act;

   (b)   fails to comply with any lawful requirement or order of a labour officer given or made under this Act;

   (c)   prevents or attempts to prevent any employee from being examined under section 9 (1) (d); or

   (d)   fails to produce any book, register or other document upon being so required under section 9 (1) (d),

shall be guilty of an offence.

PART IV
EMPLOYMENT OF YOUNG PERSONS

21.   Prohibition against child labour

   (1) Subject to subsection (2), no person under the age of fourteen shall be employed or work in any public or private agricultural, industrial or non-industrial undertaking or any branch thereof.

   (2) Subsection (1) shall not apply to work done in homes, vocational technical schools or other training institutions:

   Provided that work done in a vocational technical school or other training institution is—

   (a)   approved and supervised by a public authority; or

   (b)   an integral part of the educational or vocational training programme for which the school or institution is responsible.

22.   Hazardous work

   (1) No person between the age of fourteen and eighteen years shall work or be employed in any occupation or activity that is likely to be—

   (a)   harmful to the health, safety, education, morals or development of such a person; or

   (b)   prejudicial to his attendance at school or any other vocational or training programme.

   (2) The Minister may, in consultation with relevant organizations of employers and employees, specify, by notice published in the Gazette, occupations or activities which, in his opinion, are likely to have the effect mentioned in subsection (1).

23.   Register of young persons

   Every employer shall keep a register of any person under the age of eighteen years employed by or working for him.

24.   Offences against this Part

   Any person who contravenes any provision of this Part shall be guilty of an offence and liable to a fine of K20,000 and to imprisonment for five years.

PART V
CONTRACTS

25.   Types of contracts

   (1) Unless otherwise provided by this Act, this Part applies to all types of contracts of employment.

   (2) A contract of employment shall be in any one of the following forms—

   (a)   a contract for an unspecified period of time;

   (b)   a contract for a specified period of time;

   (c)   a contract for a specific task.

26.   Probationary period

   (1) In a contract of employment in respect of a skilled worker, the parties may agree on the duration of the probationary period:

   Provided that the period shall not, in any event, exceed twelve months.

   (2) During a probationary period, a contract of employment may be terminated at any time by either party without notice.

   (3) For purposes of this section, “skilled worker” means an employee in an undertaking who has special ability to do something, which ability is gained through acquisition, programmed or otherwise, of knowledge, attitude and behaviour.

27.   Particulars of employment

   (1) Every employer shall give to each employee a written statement of particulars of employment.

   (2) The statement referred to in subsection (1) shall be given—

   (a)   with respect to an employee in employment at the commencement of this Act, within three months of the commencement of this Act, to each employee who is employed by the employer; and

   (b)   with respect to an employee employed after the commencement of this Act, within one month of his reporting for work.

   (3) The written statement referred to in subsections (1) and (2) shall include the following particulars—

   (a)   the names of the employee and of the employer;

   (b)   the date of commencement of the contract;

   (c)   the rate of remuneration and the method of calculating remuneration;

   (d)   the intervals at which remuneration is paid;

   (e)   the nature of the work to be performed;

   (f)   normal hours of work;

   (g)   any provision for the termination of the contract other than those provided by this Act;

   (h)   any disciplinary rule applicable to the employee.

   (4) For the purposes of this section, “employer” means any person, body corporate, undertaking or body of persons who or which has in his employment at least five employees.

28.   Termination of contracts

   (1) Subject to sections 29 and 57, a contract of employment for an unspecified period of time may be terminated by either party.

   (2) A contract of employment for a specified period of time shall automatically terminate on the date specified for its termination and, unless it is expressly or tacitly renewed or prolonged, no notice shall be required for its termination;

   (3) Where the purpose or effect of a contract of employment that is purported to be for a specified period of time or a specific task is the filling on a lasting basis of a post connected with the normal and permanent activity of an undertaking, it shall be deemed to be a contract of employment for an unspecified period of time.

   (4) A contract of employment to perform a specific task shall terminate on the completion of the task and no notice of termination shall be required of either party:

   Provided that in cases of ambiguity, where an employee is regularly and repeatedly employed and paid wages on the basis of completion of a quantity of work which can be completed in less than 24 hours, the contract of employment shall be deemed to be of an unspecified period of time.

29.   Notice of termination of contracts

   (1) A contract of employment for an unspecified period of time may be terminated by either party upon giving the other party the following minimum period of notice in writing—

   (a)   where the contract is to pay wages at a monthly rate, one month’s notice;

   (b)   where the contract is to pay wages at a fortnightly rate—

      (i)   one fortnight’s notice where the employee has been employed for less than five years; and

      (ii)   one month’s notice where the employee has been continuously employed for at least five years.

   (c)   where the contract is to pay wages at a weekly rate—

      (i)   one week’s notice where the employee has been employed for less than two years;

      (ii)   one fortnight’s notice where the employee has been continuously employed for a period of not less than two years but not exceeding five years; and

      (iii)   one month’s notice where the employee has been continuously employed for at least five years;

   (d)   where the contract is to pay wages at a daily or hourly rate—

      (i)   one day’s notice where the employee has been employed for less than six months;

      (ii)   one week’s notice where the employee has been continuously employed for a period of not less than six months but not exceeding two years;

      (iii)   one fortnight’s notice where the employee has been continuously employed for a period of not less than two years but less than five years; and

      (iv)   one month’s notice where the employee has been continuously employed for a period of at least five years.

   (2) Where the contract of employment for unspecified period of time is to pay wages at any rate, other than an annual rate, not provided for in subsection (1), either party may determine the contract at the close of any day without notice.

   (3) The minimum period of notice in respect of a contract of employment for a specified period of time shall be fourteen calendar days.

30.   Payment in lieu of notice

   (1) Section 29 shall not be taken to prevent either party from waiving his right to notice on any occasion or from accepting payment in lieu of notice.

   (2) In lieu of providing notice of termination, the employer shall pay the employee a sum equal to the remuneration that would have been received and confer on the employee all other benefits due to the employee up to the expiration of the required period of notice.

   (3) Where the employee terminates the contract without notice in circumstance in which notice was required, and the employer has not waived the right to notice, the employee shall be required to pay the employer in lieu of notice a sum equal to the remuneration that would otherwise have been due to the employee up to the expiration of the required period of notice:

   Provided that the employee shall be entitled to be paid remuneration and to receive such other benefits which may have accrued at the date of termination.

31.   Certificate of termination

   (1) On any termination of a contract of employment an employer, if so requested by the employee, shall provide the employee with a certificate indicating—

   (a)   the name and address of the employer;

   (b)   the nature of the employer’s business;

   (c)   the length of the employee’s continuous employment with the employer;

   (d)   the capacity in which the employee was employed prior to the termination;

   (e)   the wages and other remuneration payable at the date of termination of the contract; and

   (f)   where the employee so requests, the reason for the termination of employment.

   (2) The certificate referred to in subsection (1) shall not contain any evaluation of the employee’s work unless the evaluation is requested by the employee.

32.   Transfer of contract

   (1) Except as provided in subsection (2), no contract of employment shall be transferred from one employer to another without the consent of the employee.

   (2) Where an undertaking or a part thereof is sold, transferred or otherwise disposed of, the contract of employment of an employee in employment at the date of the disposition shall automatically be transferred to the transferee and all the rights and obligations between the employee and the transferor at the date of the disposition shall continue to apply as if they had been rights and obligations between the employee and the transferee and anything done before the disposition by or in relation to the transferor in respect of the employee shall be deemed to have been done by or in relation to the transferee.

   (3) Subsection (2) shall not absolve any person of liability to be prosecuted for, convicted of and sentenced for any offence committed prior to the sale, transfer or disposition of the undertaking referred to in subsection (2).

33.   Death of employer

   If the employer’s personal or legal position formed the basis of a contract of employment, the death of the employer shall cause the contract of employment to terminate one month from the date of the employer’s death, unless it is otherwise terminated in accordance with section 57 (1) within that period.

34.   Insolvency of employer

   (1) The insolvency or winding-up of the employer’s business shall cause the contract of employment of any employee to terminate one month from the date of insolvency or winding-up, unless it is otherwise terminated in accordance with section 57 (1) within that period.

   (2) This section shall not apply where, notwithstanding the insolvency or winding-up, the undertaking continues to operate or has been transferred.

   (3) On the insolvency or winding-up of an employer’s business, the claim of an employee or those claiming on his behalf to wages and other payments to which he is entitled under this Act or any contract shall have priority over all other creditors, including the State and the social security system, for the following amounts—

   (a)   wages, overtime pay, commissions and other forms of remuneration relating to work performed during the twelve weeks preceding the date of the declaration of insolvency or winding-up;

   (b)   holiday pay due as a result of work performed during the two years preceding the date of the declaration of insolvency or winding-up;

   (c)   amounts due in respect of other types of paid absence accrued during the three months preceding the date of the declaration of insolvency or winding-up; and

   (d)   severance pay, compensation for unfair dismissal and other payments due to employees upon termination of their employment.

35.   Severance allowance

   (1) On the termination of a contract as a result of redundancy or retrenchment, or due to economic difficulties, or technical, structural or operational requirements of the employer, or on the unfair dismissal of an employee by the employer, and not in any other circumstance, an employee shall be entitled to be paid by the employer, at the time of termination, a severance allowance to be calculated in accordance with Part I of the First Schedule.

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