Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Eswatini (Ratification: 1978)

The Committee takes note of the Government's report and recalls that for several years its comments have addressed the following points.

Article 2 of the Convention

1. Exclusion of prison staff from the enjoyment of the right of association (section 83(c) of the Act of 1980);

2. obligation upon workers to organise within the context of the industry in which they exercise their activity (sections 2(1) and (2) of the Act of 1980);

3. power of the Labour Commissioner to refuse to register a trade union if he is of the opinion that the interests of the workers are fully, or substantially, represented by a trade union that has already been registered (section 23(3) of the Act of 1980), even though, by virtue of section 24(1)(d) an appeal may be made against such a refusal before the Labour Tribunal;

4. obligation for an occupational organisation or federation to obtain authorisation before affiliating with any international organisation (section 34(1) of the Act of 1980).

Article 3 of the Convention

5. Prohibition upon federations to carry on political activities and limitation of their activities to providing advice and services (section 33 of the Act of 1980);

6. prohibition of the right to strike in essential services, including, in particular, the postal, radio and teaching sectors (section 65(6) of the Act of 1980);

7. power of the Minister to refer any dispute to compulsory arbitration if he is of the opinion that a current or pending strike constitutes a threat to the national interest (section 63(1) of the Act of 1980).

1. With regard to prison staff, the Government stresses that their exclusion from the enjoyment of the right of association is due to the fact that their function is similar to that of the police and that they are part of the security forces.

While noting this statement, the Committee points out that the functions performed by this category of workers are not such as to justify their exclusion from the right to organise under Article 9 of the Convention which applies only to the police and the armed forces. Consequently, they should be able to group together in an association in order to defend their interests. However, the right to establish associations does not exclude the possibility of considering the functions performed by these persons as an essential service and measures may therefore be taken to restrict, inter alia, their right to strike. The Committee therefore asks the Government to indicate the measures taken or under consideration to grant prison staff the right of association.

2. and 3. The Committee notes the Government's statement that the workers have never complained that they are free to organise only within the industry in which they exercise their activities, and that they have the possibility of expressing any discontent before institutions such as the Labour Advisory Board.

Furthermore, the Committee notes from the Government's report that a decision by the Labour Commissioner to refuse to register a trade union on the grounds that a union that has already been registered fully or substantially represents the interests of the workers must be based on a bona fide opinion which may also be appealed.

The Committee wishes to remind the Government that, although the obligation to group together in branch unions has not to date been contested by the workers and the Labour Commissioner's powers, as the Government stresses, are not absolute but discretionary, these provisions are liable, nonetheless, to restrict the right of workers to establish organisations of their own choosing, which is contrary to Article 2 of the Convention.

4. The Committee notes that the Government reiterates that the purpose of requiring authorisation from the authorities for workers' (or employers') organisations to become members of international organisations is to ensure that the workers' or employers' organisations do not affiliate to undesirable international organisations.

The Committee recalls that workers' and employers' organisations enjoy the right to affiliate to international organisations without previous authorisation, under Articles 5 and 6 of the Convention. It also requests the Government to state whether it has already refused an application to affiliate to an international organisation.

5. With regard to the restrictions imposed by law on the activities of federations, the Committee notes that the Government is currently holding consultations on this matter.

The Committee recalls that, under Article 6 of the Convention, federations enjoy identical rights to those of lower-level organisations. Accordingly, they must be able to express their opinion publicly on the Government's economic and social policy, as the fundamental purpose of trade unions, federations and confederations should be to ensure development of the economic and social well-being of all workers.

6. and 7. With regard to the provisions concerning compulsory arbitration, which allow the authorities to prevent strikes or to end them if the national interest is threatened, the Government indicates that their purpose is to promote peaceful negotiation between the social partners. In the Government's opinion, although strikes are the only economic weapon available to workers, at the same time, they are economically detrimental to the nation as a whole.

While noting these statements, the Committee recalls the right to resort to strikes is one of the essential means available to workers' organisations for defending the interests of their members. However, under the Convention, this right can be restricted or prohibited: (a) in the case of public servants acting in their capacity as agents of the public authority; (b) in essential services in the strict sense of the term, namely services whose interruption would endanger the life, personal safety or health of the whole or part of the population; (in the opinion of the Committee, this restriction would become meaningless if the legislation defined essential services too broadly; it is for this reason that, in its previous observation, the Committee stressed that the post, radio and teaching sectors, in which strikes are prohibited, could not be considered essential services in the meaning of the Committee's definition); (c) in the event of an acute national crisis for a limited period.

Thus, in the light of the foregoing comments, section 63(1) of the Act of 1980 which allows a dispute to be referred to compulsory arbitration at the discretion of the authorities when the national interests are at stake, confers powers on the authorities which are so broad as to be liable to restrict the right of workers' organisations to resort to strikes as a means of defending the interests of their members, which is contrary to Articles 3 and 10 of the Convention. In the Committee's opinion, the prohibition of the right to strike in essential services (section 65(6) of the Act of 1980) should be restricted to services whose interruption would endanger the life, personal safety or health of the whole or part of the population.

The Committee notes that, according to the Government, proposals to amend certain sections of the Act have been made and some of the discrepancies will be eliminated.

The Committee trusts that measures will be taken in the near future to amend the provisions of the Act to take account of its comments.

In addition, in its last observation, the Committee noted with interest that the Labour Tribunal had recognised the right to hold meetings for trade union purposes without prior authorisation from the police, whereas section 12 of the Decree of 1973 imposes substantial restrictions on the right of trade unions to hold meetings and demonstrations.

In the absence of any information on this point, the Committee requests the Government to indicate the measures taken or envisaged to amend section 12 of the Decree of 1973 to take account of the above ruling.