Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

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, the statement made by the Government representative to the 2000 Conference Committee and the discussion that followed as well as the recent ILO technical advisory mission to the country (November 2000) during which preliminary draft amendments to the Industrial Relations Act were prepared with the authorities. The Committee also notes the case examined by the Committee on Freedom of Association (Case No. 2019, 321st Report).

The Committee notes with satisfaction that a number of the discrepancies between the legislation and the provisions of the Convention which the Committee had raised previously have been addressed through the adoption of the Industrial Relations Act, 2000 (the Act) which received Royal Assent on 6 June 2000, an earlier draft of which was prepared with ILO technical assistance and in consultation with the social partners. In particular the following issues have been satisfactorily addressed:

­-  the definition of "employee" no longer excludes casual workers (section 2); these workers are, therefore, no longer excluded from the Act and thus from the rights set out in the Convention;

­-  workers are no longer obliged to organize within the context of the industry within which they exercise their activity, and the Labour Commissioner is no longer entitled to refuse to register a trade union if he or she is satisfied that an already registered organization is sufficiently representative;

-  it appears that imprisonment can no longer be imposed as a sanction for unlawful industrial action or for a federation or any of its officers causing or inciting the cessation or slowdown of work;

-  the activities of federations have been expanded to include advice, consultation, collective bargaining, defence and promotion of the collective interests of their members, including matters of public policy and public administration (section 32(2));

-  the prohibition of the right to strike in the broadcasting sector has been repealed;

-  while the Act continues to provide for a strike to be ended if it is found to threaten the "national interest" (section 89), the definition of "national interest" is in conformity with what the Committee considers to be essential services, that is to say those services the interruption of which has or is likely to have the effect of endangering the life, health or personal safety of the whole or part of the population (section 2);

-  the court is no longer empowered to limit the non-occupational activities or wind up an organization or federation because it has devoted more funds and more time to campaigning on issues of public policy or public administration than to protecting the rights and advancing the interests of its members;

-  the court is no longer empowered to cancel or suspend registration of an organization taking strike action that is not in conformity with the Act, even for simple procedural violations;

-  the obligation to consult the Minister prior to international affiliation has been repealed.

While noting that the Act constitutes a considerable improvement over the previous legislation, the Committee draws the Government’s attention to the discrepancies between the Act and the requirements of the Convention noted below.

Article 2 of the Convention.  The Committee notes that His Majesty’s Correctional Services are specifically excluded from the scope of the Act (section 3). The Committee recalls its comments concerning the 1996 Industrial Relations Act, that pursuant to the Convention, workers without distinction whatsoever should be entitled to form and join organizations of their own choosing, with the possible exception of the police and armed forces. While prison staff may be denied the right to strike, since they are undertaking an essential service, they cannot be denied the right to organize. The Committee requests the Government to provide information as to whether and to what extent prison staff are entitled to organize, and to forward a copy of the relevant legislative text providing therefore.

Right to strike.  The Committee notes that a lengthy procedure is required to be followed before strike action can be taken legally (thus constituting a "protected" strike). From the time a dispute is reported to the Labour Commissioner to the time the workers are entitled legally to strike, 70 days will have elapsed. The Committee recalls that the dispute settlement procedure should not be so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness (see General Survey on freedom of association and collective bargaining, 1994, paragraph 171). The Committee requests the Government to inform it of any measures taken or proposed to decrease the length of the compulsory dispute settlement procedures.

The Committee notes that according to the Government’s report, section 40 of the Act concerning peaceful protest action, addresses the concerns raised previously by the Committee regarding section 12 of the Decree on the rights of organizations of 1973, and the 1963 Public Order Act. The Committee notes, however, that while the Act now permits peaceful protest action, mandatory prerequisites similar to those required for a strike in furtherance of a trade dispute are set out; it considers that such prerequisites are generally not conducive to the exercise of the right to take protest action. The Committee notes that pursuant to the procedures set out in section 40, 32 days will have elapsed before such action can be taken which the Committee considers would result in protest action becoming impossible in practice or losing its effectiveness. The Committee also considers that the balloting requirements are excessive in the context of protest action, since in the case of national protest action, for example, essentially a national referendum would need to be taken, which could itself give rise to a long and onerous procedure. It should be recalled that the Committee has consistently held that the requirements for a strike ballot should not be such as to render the possibility of exercising the right to strike very difficult, or even impossible in practice (see General Survey, op. cit., paragraph 170). The Committee also notes that section 40(13) appears to open all federations, unions and individuals involved in protest action to civil liability, even if all the prerequisites under the Act are fulfilled. By essentially withdrawing all immunity for civil liability, the Committee is of the view that the right to take protest action to promote socio-economic interests is in practice seriously restricted, since the costs to unions, federations, their affiliates and members could be prohibitive. The Committee  expresses the firm hope that the preliminary draft amendment of section 40 prepared in the framework of the technical advisory mission will be adopted without delay in order to bring the legislation into closer conformity with the requirements of the Convention.

The Committee is also addressing a request directly to the Government.