Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

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

The Committee notes the Government’s report.

In its previous comments the Committee requested the Government to provide information on the impact of the rights under the Convention for domestic workers given their exclusion from the term "undertaking" in section 2(k)(bb) of the Industrial Relations Act. The Committee had also requested to be kept informed of any exemptions from the operation of the Act made by the Minister pursuant to section 5. The Government replies in its report that the definition of "undertaking" does not make a distinction between a regular employee and casual employee. Furthermore, the Government states that the Labour Advisory Board (LAB) may consider the Committee’s comment and, if necessary and practicable, it would make the necessary recommendation for amendment. Recalling that Article 2 of the Convention provides that all workers without distinction whatsoever shall have the right to form and join organizations of their own choosing, the Committee requests the Government to keep it informed of the LAB recommendations and of any future developments in this regard.

The Committee in its previous direct request noted the allegations raised in Case No. 2019 before the Committee on Freedom of Association regarding the Government’s intention to introduce a Media Council Bill and a Civil Servants Bill aimed at denying freedom of expression and the rights of journalists and civil servants, respectively. The Committee once again requests the Government to keep it informed of the status of these Bills, and to transmit copies with its next report so that their compatibility with the Convention can be assessed.

Article 3 of the Convention. The Committee notes that the Government’s report contains no reply to its previous comments in respect of this Article of the Convention and therefore finds itself obliged to reiterate the following points.

The Committee had noted that, in order to be registered, the constitution of an organization has to contain a number of provisions, including that, subject to the terms of the Act and the constitution of the organization, only paid-up members could vote in the election of officers, nominate a candidate for any office, be nominated for, or be elected to, any office, or express views on candidates and other issues (section 29(1)(i)). The Committee once again requests the Government to take measures to ensure that any such restrictions placed on the nomination of candidates and eligibility for office are left to the rules of the organization concerned, in keeping with the right of workers’ and employers’ organizations to draw up their rules and elect their representatives in full freedom.

The Committee had noted that, pursuant to the Act, there must be a strike ballot before a strike would be taken lawfully (section 86), and responsibility for arranging and supervising the ballot was entrusted to the Conciliation, Mediation and Arbitration Commission (CMAC). The Committee suggests that, where such supervision takes place, it should be at the request of the workers or their organizations, so as to ensure that workers’ organizations are able to organize their activities and formulate their programmes without interference from the public authorities. The Committee also requests the Government to provide details concerning the practical application of section 86(4), which requires that the employer provide a list to the CMAC of the relevant employees prior to a ballot concerning strike action at the enterprise.

With respect to sanctions for taking strike action, while noting that imprisonment can no longer be imposed for unlawful industrial action, the Committee once again requests the Government to clarify the effect of section 97(1) providing that criminal proceedings may be brought against certain persons where there is reasonable cause to believe that an offence under the Act has been committed by a corporate body. The Committee also requests a copy of the relevant penal provisions that may apply. The Committee also noted section 87 which allows an employer to dismiss an employee during a strike for reasons based on the employer’s operational requirements, and drew the Government’s attention to the need for adequate protection to ensure that this provision is not used to undermine legitimate strike action. The Committee also noted that workers could be summarily dismissed if strike action was taken that was not in conformity with the Act (section 88). In many cases such a sanction would be disproportionate to the seriousness of the violation (particularly in the light of the complex and lengthy dispute settlement procedures).

The Committee noted that, while the general definition of "essential services" complied with that accepted by the Committee, a list of services which are deemed to be essential was also set out and included, inter alia, sanitary services. The Committee considers that sanitary services should not be considered essential in the first instance, though they may become essential due to the extent and duration of the strike (see General Survey on freedom of association and collective bargaining, 1994, paragraph 160). However, while not essential services in the strict sense of the term, sanitary services do constitute a public utility; therefore, the Government may want to consider the establishment of a minimum service in sanitary services with workers’ organizations and employers participating in the definition of such service (General Survey, 1994, paragraphs 160-161).

The Committee noted that while there was no longer an express prohibition of sympathy action in the Act, due to the definition of "protected strike", sympathy action appears to continue to be prohibited. The Committee requests the Government to address this matter in its next report.