Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

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

The Committee observes that the Government’s report has not been received.

It take notes of the comments of 10 August 2006 by the International Confederation of Free Trade Unions (ICFTU) referring to issues already examined.

The Committee also notes the report of the High-level Mission that visited Swaziland from 21-27 July 2006 at the request of the Conference Committee on the Application of Standards in 2005 in the context of its examination of the application of the Convention.

For several years the Committee has been referring to provisions of the law that are inconsistent with those of the Convention, or has requested information on the effect given to some provisions in practice. In its previous comments, it asked the Government:

–           to repeal the 1973 Decree/State of Emergency Proclamation and its implementing regulations, concerning trade union rights;

–           to amend the 1963 Public Order Act so that it will not be used to repress lawful and peaceful strikes;

–           to amend the legislation or enact other laws to ensure that prison staff and domestic workers have the right to organize in defence of their economic and social interests;

–           to amend section 29(1)(i) of the Industrial Relations Act (IRA) placing statutory restrictions on the nomination of candidates and eligibility for union office, to enable such matters to be dealt with in the statutes of the organizations concerned;

–           to amend IRA section 86(4) to ensure that the Conciliation, Mediation and Arbitration Commission (CMAC) does not supervise strike ballots unless the organizations so request in accordance with their own statutes;

–           to recognize the right to strike in sanitary services (at present banned by IRA section 93(9)), establish only a minimum service with the participation of workers and employers in the definition of such a service;

–           to amend the legislation in order to shorten the compulsory dispute settlement procedures laid down in IRA sections 85 and 86 read in conjunction with sections 70 and 82;

–           with regard to the civil liability of trade union leaders, to continue to provide information on any practical application of section 40, and in particular the charges that may be brought under IRA section 40(13);

–           to provide information on the effect given in practice to IRA section 97(1) (criminal liability of trade union leaders) and to ensure that penalties applying to strikers under section 88 are proportionate to the seriousness of the offence and that enforcement of section 87 does not impair the right to strike.

In its previous observation the Committee further noted that the SFTU had raised serious concerns about the drafting process and the content of the Constitution, which had apparently been approved by Parliament. The Committee recalls that in 2005, the Conference Committee urged the Government to accept the abovementioned High-level Mission to establish a meaningful framework for social dialogue, and to review the impact of the Constitution on the rights embodied in the Convention. The Committee observes that the Mission’s report indicates that the Constitution entered into force on 8 February 2006 and that the social partners and civil society organizations share the view that in the consultations held for the adoption of the Constitution, they were not given the opportunity to voice their concerns as interest groups.

The Committee notes with interest in connection with the foregoing that, at the Mission’s proposal, the Government and the social partners signed an agreement undertaking to set up a Special Consultative Tripartite Sub-Committee within the framework of the High-level Steering Committee on Social Dialogue. The terms of reference of the Subcommittee are: (1) to review the impact of the Constitution on the rights embodied in Convention No. 87; and (2) to make recommendations to the competent authorities to eliminate the discrepancies between the existing legislative provisions and the Convention. The Committee also notes that the abovementioned agreement provides for the Sub-Committee to start work promptly and provide a progress report for transmission to the ILO by the end of April 2007. The Committee expresses the hope that the legislation will be brought into full conformity with the requirements of the Convention, and asks the Government to provide information in its next report on any developments in this regard.

Lastly, in its previous comments the Committee noted that, according to the ICFTU, in August 2003 a three-day protest by Swazi labour federations was violently broken up by police using tear gas and rubber bullets, during which a trade unionist was killed. The Committee asked the Government to report on any investigations into the matter. It notes with interest that: (1) the Mission took the view that an independent inquiry should be held as recommended by the Committee and that the investigators should be given full freedom and independence to investigate the allegations fully and to clarify all the facts; and (2) at the request of the Government, the Mission drew up terms of reference for an independent judicial inquiry to be undertaken. The Committee trusts that the inquiry will be held in the near future and asks the Government to provide information on its outcome in its next report.