The High Court of Malawi has dismissed an application by Judiciary Members of Staff Union for a judicial review and an order to put aside implementation of the Labour Relations Act (Amendment) Bill.
The union moved the court to declare void the tabling and subsequent passing of the Bill in Parliament and that President Lazar u s Chakwera should not sign it into law.
In a judgement dated August 13 2021, High Court Judge Mandala Mambulasa dismissed the application, noting that despite the union not being consulted, there were consultations on the Labour Relations Act (Amendment) Bill with umbrella bodies both in public and private sectors.
The judge said: “The court agrees with the submission by the advocate for the defendants, Mr. [Richard] Santhe, that it is not possible to consult with every person or trade union in the country as that also depends on many factors, including the availability of finances.
“In any event, the claimant cannot be heard to say that there are other employees who do not belong to trade unions and other unions which do not belong to MCTU [Malawi Congress of Trade Unions] to whom consultations should have been extended when it is not representing them in this court nor are they parties to this application.”
Mambulasa also refused to grant an order to put aside implementation of the law, saying the application automatically falls away.
In an interview yesterday, the union’s spokesperson Andy Haliwa said they have no problem with the ruling because the President has not yet signed the Bill into law.
He said: “We have noticed that among the Bills that the President assented to, this Bill in particular, was not assented to and was not on the list, as such, we are okay with it [ruling].
“But whenever the President assents to it, we will go back to the court to seek other remedies on it and see the constitutionality of that law.”
The Labour Relations Act (Amendment) Bill courted controversy due to some of its provisions which attracted reservations from some stakeholders.
In Section 2(4), the Bill states that an employee shall not be entitled to receive wages for the period they are absent from work due to participation in a strike.
Section 4 further gives the Minister of Labour power to make regulations in providing for expeditious resolution of disputes involving employers and employees engaged in essential services and timely implementation of decisions made or awards granted.
One week after the Bill was passed in Parliament,
Chakwera said he would not be signing it into law on the basis that it did not go through proper consultations; hence, he would only pass it until thorough consultations are done.
After the Bill was passed in Parliament on July 8, Democratic Progressive Party (DPP) and United Democratic Front (UDF) legislators walked out of Parliament in protest against the Labour Relations Act (Amendment) Bill and Employment Act (Amendment) Bill.
The International Trade Union Confederation (ITUC) also wrote Chakwera not to assent to the Bill and further expressed reservations with the provisions, saying they limit the rights of workers