Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

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

The Committee notes the information provided in the Government's report received in April 1997, as well as the statement made by the Government representative to the 1997 Conference Committee and the discussion which took place therein.

The Committee recalls that its previous comments concerned numerous discrepancies between the Industrial Relations Act of 1995 (which came into force in January 1996) and the provisions of the Convention. While noting from the discussion in the Conference Committee the Government's indication that the recommendations made by the national Labour Advisory Board concerning amendments to the IRA would be discussed at the end of June with the social partners and that the final amendment Bill would be passed through Parliament by August 1997, the Committee notes with regret that it has not received any information from the Government concerning the progress made in this regard.

With regard to the Government's indication that prison staff, who are excluded from the right to organize by virtue of section 91(c) of the Act, are primarily the same as the police and the defence force and are referred to as the "armed forces", the Committee recalls that Article 2 of the Convention refers to the right to organize for workers and employers without distinction whatsoever. The Committee would draw the Government's attention in this regard to paragraph 56 of its 1994 General Survey on freedom of association and collective bargaining in which it indicates that the functions exercised by prison staff should not justify their exclusion from the right to organize based on the argument that they might be excluded under Article 9. On the other hand, prison staff may be deprived of the right to strike. The Committee asks the Government to provide a copy of the regulations governing the conditions of employment of prison staff.

Regarding the obligation upon workers to organize within the context of the industry in which they exercise their activity (section 27 of the Act) and the power of the Labour Commissioner to refuse to register a trade union if he or she is satisfied that an already registered organization is sufficiently representative (section 30(5) of the Act), the Committee notes the Government's indication that this does not pose any functional problem and that the labour force is too small to afford union multiplicity. The Committee once again recalls however that Article 2 of the Convention provides that workers and employers shall have the right to establish and join organizations of their own choosing and that, while it was clearly not the purpose of the Convention to make trade union diversity an obligation, it does at the very least require this diversity to remain possible in all cases (see 1994 General Survey, paragraph 91). However, the Committee has noted provisions in some countries which attempt to establish a proper balance between imposed trade union unity and the fragmentation of organizations by establishing the concept of the most representative trade unions which are generally granted a variety of rights and advantages. The Committee has considered that such provisions are not contrary to the principle of freedom of association provided that the determination of the most representative organizations is based upon objective, pre-established and precise criteria and that the distinction is limited to the recognition of certain preferential rights, such as collective bargaining or national consultation (see 1994 General Survey, paragraph 97).

Furthermore, the Committee would recall the following discrepancies between the legislation and the provisions of the Convention:

-- the prohibition of a federation or any of its officers from causing or inciting the cessation or slow-down of work or economic activity upon punishment of imprisonment up to five years (section 40(3) of the Act);

-- limitation of the activities of federations to that of providing advice and services (section 40 of the Act);

-- prohibition of the right to strike in the broadcasting sector under punishment of one year imprisonment for the holder of an office in an organization or federation and possible disqualification from holding office for one year (section 73(5 and 6) of the Act);

-- power of the Minister to apply to the court to enjoin any strike or lock-out if he or she considers that the "national interest" is threatened (section 70(1) of the Act);

-- important restrictions of the rights of organizations to hold meetings and peaceful demonstrations (section 12 of the 1973 Decree on meetings and demonstrations);

-- the prohibition of sympathy strikes (section 87(1)(e) of the Act);

-- strike ballots conducted by the Commissioner of Labour and the requirement that a majority of the employees concerned approve such action (section 66(1)(b)) (see 1994 General Survey on freedom of association and collective bargaining, paragraph 170);

-- penal sanctions ranging from one to five years for various "unlawful" forms of industrial action under sections 69(2), 72(3), 73(3-5), 74 and 87(3), including with respect to restrictions which are in violation of the principle of the right to strike;

-- the power of the court to limit the non-occupational activities or wind up an organization or federation which has devoted more funds and more of the time of its officers to campaigning on issues of public policy or public administration than to protecting the rights and advancing the interests of its members (section 42(2));

-- the power of the court to cancel or suspend registration of any organization taking strike action which is not in conformity with the Act, even for simple procedural violations (section 69(1)(b)).

-- obligation to consult the minister prior to international affiliation (section 41(1) of the Act).

The Committee trusts that the Government will take the measures necessary to amend these provisions of the Act in the very near future so as to bring them into full conformity with the provisions of the Convention and would once again point out that the technical assistance of the ILO is available in this respect.

[The Government is requested to provide full particulars to the Conference at its 86th Session.]