CHAPTER 55:03
WORKERS’ COMPENSATION

ARRANGEMENT OF SECTIONS

   SECTION

PART I
PRELIMINARY

   1.   Short title

   2.   Meaning of “worker”

   3.   Interpretation

PART II
ELIGIBILITY FOR COMPENSATION IN CASE OF INJURY OTHER THAN THE CONTRACTION OF A SCHEDULED DISEASE

   4.   Employer’s liability for compensation for death or incapacitydue to injury other than the contraction of a scheduled disease

   5.   Compensation, how paid and by whom

   6.   Workers engaged on business outside Malawi, etc.

PART III
COMPENSATION FOR INJURY CAUSED OTHERWISE THAN BY THE CONTRACTION OF A SCHEDULED DISEASE

   7.   Compensation in fatal cases

   8.   Compensation in the case of permanent total incapacity

   9.   Compensation in the case of permanent partial incapacity

   10.   Minister may prescribe maximum amounts of compensationpayable under this Act

PART IV
CALCULATION AND DISTRIBUTION OF COMPENSATION

   11.   Method of calculating earnings

   12.   Persons entitled to compensation

   13.   Distribution of compensation

PART V
MEDICAL AID

   14.   Medical expenses

   15.   Decisions of the Board in regard to medical aid

PART VI
COMPENSATION FOR INJURY DUE TO THE CONTRACTION OF SCHEDULED DISEASES

   16.   Compensation where incapacity or death due to a scheduled disease

   17.   Employer’s liability to pay compensation in case of incapacity or death due to scheduled disease

   18.   Special provisions relating to incapacity or death due to scheduled diseases

   19.   Presumption as to cause of a scheduled disease

   20.   Right of worker to proceed against previous employer

   21.   Minister to amend Second Schedule

   22.   Pre-engagement clinical test for scheduled diseases

PART VII
PROCEDURE FOR OBTAINING COMPENSATION

   23.   Requirements as to notice of injury and application for com-pensation

   24.   Employers to report injuries

   25.   Medical examination and treatment

   26.   Dependants of deceased worker

PART VIII
ESTABLISHMENT OF THE BOARD

   27.   Establishment and composition of the Board

   28.   Tenure of Office of the members of the Board and vacancies thereon

   29.   Remuneration of members of the Board

   30.   Secretary

   31.   Meeting of the Board

   32.   Committees of the Board

   33.   Functions of the Board

   34.   Regulations

PART IX
ADMINISTRATION

   35.   Appointment of Commissioner and other staff

   36.   Duties and functions of the Commissioner

   37.   Powers of inspection and investigation

   38.   Secrecy

   39.   Revision of compensation by the Commissioner

   40.   Powers of the Commissioner in respect of witness, etc.

   41.   Objections by workers or employers against decisions of the Commissioner

   42.   Objections on behalf of dependants in case of death of a worker

   43.   Formal inquiry by the Commissioner

   44.   Appeal against a decision of the Commissioner made under section 36

   45.   Suspension of obligation

   46.   Commissioner may state a case for High Court

   47.   Commissioner may submit court’s decision to the High Court

   48.   Assessors

   49.   Applications for the Commissioner’s determination by interested parties

   50.   Enforcement of determinations of the Commissioner

   51.   Appeals to the High Court

PART X
APPEAL

   52.   Establishment of Workers’ Compensation Tribunal

   53.   Proceedings of Workers’ Compensation Tribunal

   54.   Appeals to Workers’ Compensation Tribunal

   55.   Powers of Workers’ Compensation Tribunal

   56.   Appeal from Workers’ Compensation Tribunal

PART XI
WORKERS’ COMPENSATION FUND

   57.   Establishment of the Workers’ Compensation Fund

   58.   Application of the Fund

   59.   Holding of assets of the Fund

   60.   Accounts and audit

   61.   Liability to assessment

PART XII
GENERAL

   62.   Remedies against both employer and stranger

   63.   Proceedings independently of this Act

   64.   Provisions in case of bankruptcy of employer

   65.   Contracting out

   66.   Compensation not to be assigned, charged or attached

   67.   General penalty

   68.   Offences relating to records and returns

   69.   Other laws

   70.   Transitional

      First Schedule

      Second Schedule

21 of 1990
7 of 2000
G.N. 66/1992
20/2011

An Act to provide for compensation for injuries suffered or diseases contracted by workers in the course of their employment or for death resulting from such injuries or diseases; to provide for the establishment and administration of a Workers’ Compensation Fund; and to provide for matters connected there with or incidental thereto

[1ST JULY 2000]

PART I
PRELIMINARY

1.   Short title

   This Act may be cited as the Workers’ Compensation Act.

2.   Meaning of worker

   In this Act, unless the context otherwise requires, “worker” means any person who has, whether before or after the commencement of this Act, entered into, or works under, a contract of service or apprenticeship with an employer in any employment, whether the contract is expressed orally or in writing or is implied:

   Provided that the following persons shall be excepted from the definition of “worker”—

   (a)   a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer’s business, not being a person employed for the purposes of any game or recreation and engaged or paid through a club; or

   (b)   an outworker;

   (c)   a tributer;

   (d)   a member of the employer’s family living in the employer’s house;

   (e)   a member of the armed forces of Malawi; or

   (f)   any class of persons whom the Minister may, by notice published in the Gazette, declare not to be workers for the purposes of this Act.

3.   Interpretation

   (1) In this Act, unless the context otherwise requires—

   “assessment” means an assessment made under Part XI;

   “business” means any industry, undertaking, trade, occupation or other activity in which a worker is employed;

   “Commissioner” means the Commissioner for Workers’ Compensation appointed under section 36 and includes any officer subordinate to him or any other person duly acting within the powers and duties of the Commissioner conferred by this Act;

   “compensation” means compensation payable under this Act and includes medical aid and any benefit of any nature to which a worker or his dependants may be entitled under this Act;

   “Board” means the Board established under section 27;

   “dependants” means those members of the family of a worker who were wholly or in part dependant upon his earnings at the time of his death, or who but for the incapacity due to the injury have been so dependent; and, where the worker, being the parent or grandparent of an illegitimate child, leaves such child so dependent upon his earnings or, being an illegitimate child, leaves a parent or grandparent so dependant on his earnings shall include such an illegitimate child or parent or grandparent, respectively:

   Provided that a person shall not be deemed to be a partial dependant of another person unless he was dependent partially on contributions from that other person for the provision of the ordinary necessaries of life suitable for persons in his class and position;

   “earnings” includes wages paid to a worker by the employer, the value of any food, fuel or quarters supplied to the worker by the employer and any overtime payments or other special remuneration for work done, whether by way of bonus or otherwise, if of constant character or for work habitually performed, but does not include remuneration for intermittent overtime, or causal payments of a non-recurrent nature, or any ex-gratia payment whether given by the employer or other person, or the value of a travelling allowance, or the value of any travelling concession, or a contribution paid by the employer of a worker towards any pension or provident fund, or a sum paid to a worker to cover any special expenses entailed on him by the nature of his employment;

   “employer” includes the Government (except the armed forces of Malawi), a local authority, any body or association of persons, corporate or unincorporated, and the personal representative of a deceased employer, and where the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of service or apprenticeship, the latter shall, for the purposes of this Act, be deemed to be the employer;

   “Fund” means the Workers’ Compensation Fund established under Part XI;

   “injury” means a personal injury and includes the contraction of a scheduled disease;

   “medical aid” means any or all the benefits for the worker under Part V;

   “medical practitioner” means a person registered as such under the Medical Practitioners and Dentists Act;

   “outworker” means a person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished or repaired, or adapted for sale in his own home or on other premises not under the control or management of the per-son who gave out the materials or articles;

   “partial incapacity” means, where the incapacity is of a temporary nature, such incapacity as reduces the earning capacity of a worker in any employment in which he was engaged at the time of the injury resulting in the incapacity, and, where the incapacity is of a permanent nature, such incapacity as reduces his earning capacity in any employment which he was capable of undertaking at that time:

   Provided that every injury specified in the First Schedule, except such injury or combination of injuries in respect of which the percentage or aggregate percentage of the loss of earning capacity as specified in that Schedule against such injury or injuries amounts to one hundred per centum or more, shall be deemed to result in permanent partial incapacity;

   “scheduled disease” means a disease specified in the Second Schedule;

   “total incapacity” means such incapacity, whether of a temporary or permanent nature, as incapacitates a worker for any employment which he was capable of undertaking at the time of the injury resulting in such incapacity:

   Provided that permanent total incapacity shall be deemed to result from an injury or from any combination of injuries speci-fied in the First Schedule where the percentage or aggregate percentage of the loss of earning capacity as specified in that Schedule against such injury or injuries, amounts to one hundred per centum;

   “tributer” means a person who is granted permission to win minerals, receiving a proportion of the minerals won by him or the value thereof.

   (2) The exercise and performance of the powers and duties of the Government, a local authority or any other body, corporate or unincorporated, shall, for the purposes of this Act, be treated as the business of the Government or of such local authority or other body.

   (3) If in any proceedings for the recovery of compensation it appears to the Commissioner that the contract of service or apprenticeship under which the injured person was working at the time of the injury was not legally valid or otherwise legally unenforceable, the Commissioner, if having regard to all the circumstances of the case he thinks it proper to do may, with the approval of the Board, deal with the matter as if the injured person at the material time had been a person working under a legally valid and enforceable con tract of service or apprenticeship.

   (4) Except for the purposes of section 25, any reference to a worker who has been injured and is dead shall, unless the context otherwise requires, include reference to his personal representative or his dependants or any of them or the Administrator General or such other public officer as the Minister may appoint to act on behalf of the dependants of the worker.

   (5) This Act shall apply to workers employed by or under the Government in the same way and to the same extent as if the employer were a private person, except in the case of persons in the armed forces of Malawi:

   Provided that nothing in this subsection shall be construed as preventing the application of this Act to persons in the armed forces of Malawi by any written law governing or regulating the armed forces of Malawi.

PART II
ELIGIBILITY FOR COMPENSATION IN CASE OF INJURY OTHER THAN THE CONTRACTION OF A SCHEDULED DISEASE

4.   Employer’s liability for compensation for death or incapacity due to injury other than the contraction of a scheduled disease

   (1) If an injury, other than the contraction of a scheduled disease, arising out of and in the course of his employment is caused to a worker, his employer shall, subject to this Act, be liable to pay compensation in accordance with this Act.

   (2) An employer shall not be liable to pay compensation under this Act—

   (a)   in respect of any injury which incapacitates the worker for a period of less than seven days from earning full wages or salary at the work at which he was employed;

   (b)   in respect of any incapacity or death resulting from delib-erate self-injury; or

   (c)   if it is proved that the injury to the worker is attributable to the serious and wilful misconduct of that worker, or if the worker has at any time represented in writing to the employer that he was not suffering, or had not previously suffered, from that or a similar injury knowing that the representation was false:

   Provided that where the injury results in death or serious permanent incapacity, the Commissioner may nevertheless, upon consideration of all the circumstances, award compensation to such extent as he considers appropriate with the approval of the Board.

   (3) For the purpose of this Act, an injury incurred by a worker in the course of his employment shall be deemed, unless the contrary is proved, also to have arisen out of that employment.

   (4) For the purposes of this Act, an injury incurred by a worker while he is acting for the purpose of and in connexion with his employer’s business, and resulting in the death or serious permanent incapacity of the worker shall be deemed to have arisen out of and in the course of his employment, not withstanding that the worker, at the time the injury was incurred, was acting in contravention of any statutory or other regulation applicable to his employment or any orders or instructions given by or on behalf of his employer, or that he was acting without orders or instructions from his employer.

   (5) For the purposes of this Act, an injury incurred by a worker in or about any premises at which he is for the time being employed for the purposes of his employer’s business shall be deemed to have arisen out of and during the course of his employment if the injury is incurred while he is taking steps in an actual or supposed emergency in or about those premises to rescue, succour or protect persons who are, or are thought to be, injured or imperilled or to avertor minimize damage to property owned or utilized by the employer or for which the employer was responsible to the owner.

   (6) For the purposes of this Act, an injury incurred by a worker while he is travelling to or from his place of employment shall be deemed to have arisen out of and in the course of his employment if he is, with the express or implied permission of the employer, travelling on or by means of transport—

   (a)   provided by the employer for carrying workers employed by him; or

   (b)   which is under the control of the employer or accepted by the employer for use by a worker and the employer has expressly or impliedly authorized its use for carrying a worker or workers employed by him.

5.   Compensation, how paid and by whom

   Where an employer is liable to pay compensation under this Act to a worker or to the dependants or the personal representative of a worker, the compensation shall be paid by the Commissioner out of the Fund, on behalf of the employer, where the employer is subject to assessment under Part XI and where the employer has paid his assessment in accordance with regulations made by the Minister, on the recommendation of the Board, under this Act.

6.   Workers engaged on business outside Malawi, etc.

   (1) Where the usual place of employment of a worker is in Malawi and he suffers injury while he is temporarily employed outside Malawi by the same employer, the worker shall be entitled to compensation from the employer in the same manner as if the injury were incurred during employment in Malawi.

   (2) Where the usual place of employment of a worker is outside Malawi, and he suffers injury while he is temporarily employed inside Malawi he shall be entitled to compensation from the employer in the same manner as if he were ordinarily employed in Malawi:

   Provided that such worker shall not be entitled to payment of his compensation out of the Fund unless his employer has prior thereto agreed with the Commissioner to be assessed and has in fact paid his assessment in that regard.

   (3) Where in the circumstances set out in subsections (1) and (2) the worker is also entitled to compensation under the law of another country and upon the worker electing to claim compensa-tion under this Act, the Commissioner shall—

   (a)   before paying any compensation make due inquiries to satisfy himself that the worker has not already claimed under the law of that other country; and

   (b)   where compensation is paid to the worker under this Act, notify that fact to the person liable to pay compensation to the worker under the law of that other country.

   (4) Where a worker is engaged in Malawi for the purpose of service in another country and he suffers injury while on his way to commence employment in such other country or while being repatriated to his place of engagement in Malawi, he shall be entitled to compensation from the employer in the circumstances set out in section 4 (6) whether the injury was incurred in Malawi or outside Malawi.

PART III
COMPENSATION FOR INJURY CAUSED OTHERWISE THAN BY THE CONTRACTION OF A SCHEDULED DISEASE

7.   Compensation in fatal cases

   (1) Subject to section 10, where death results from injury caused otherwise than by the contraction of a scheduled disease to a worker in circumstances in which compensation is payable—

   (a)   if the worker leaves any dependants wholly dependent upon his earnings, the amount of compensation shall be a sum equal to forty-two times his monthly earnings at the time of the injury:

   Provided that, where in respect of the same injury compensation has already been paid for permanent total incapacity or permanent partial incapacity, such compensation shall be deducted from the sum payable as compensation for the death of the worker, but in no case shall the estate of the deceased worker be liable to refund any sum, in excess of the amount payable hereunder upon death, paid to the deceased worker for such permanent total incapacity or permanent partial incapacity;

   (b)   if the worker leaves no dependants, the reasonable expenses of medical attendance on the deceased worker and the burial of his body shall be paid by the employer.

   (2) Expenses due to any person under subsection (1) (b) shall be recoverable from the Fund.

8.   Compensation in the case of permanent total incapacity

   (1) Subject to section 10, where permanent total incapacity results from injury to a worker in circumstances in which compensation is payable, the amount of compensation shall be a sum equal to fifty-four times the monthly earnings at the time of the injury.

   (2) Where the permanent total incapacity is of such a nature that the injured worker must have the constant help of another person, compensation additional to that provided under subsection (1) shall be payable out of the Fund as approved by the Board.

9.   Compensation in the case of permanent partial incapacity

   (1) Where permanent partial incapacity results from injury to a worker in circumstances in which compensation is payable, the amount of compensation shall be—

   (a)   in the case of an injury specified in the First Schedule, such percentage of the compensation which would have been payable in the case of permanent total incapacity as is specified in that Schedule as being the percentage caused by that injury; and

   (b)   in the case of an injury not specified in the First Schedule, such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury in any employment which the employee was capable of undertaking at the time of his injury:

   Provided that in no case shall the amount of compensation payable under this subsection be greater than the amount of com-pensation payable under section 8.

   (2) Where more injuries than one are caused to the worker by the same accident, the amount of compensation payable under this section shall be aggregated, but not so as to exceed the amount which would have been payable if permanent total incapacity had resulted from the injuries.

10.   Minister may prescribe maximum amount of compensation payable under this Act

   Compensation payable under this Act shall be subject to such maximum amounts as the Minister may, on the advice of the Board, prescribe by order published in the Gazette and the Minister may prescribe different maximum amounts of compensation relative to the earning capacity of workers.

PART IV
CALCULATION AND DISTRIBUTION OF COMPENSATION

11.   Method of calculating earnings

   (1) For the purposes of this Act the monthly earnings of a worker shall be computed in such manner as is best calculated to give the rate per month at which the worker was being remunerated during the previous twelve months if he has been employed by the same employer, but if not, then for any less period during which he has been in the employment of the same employer:

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