Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

The Committee notes the comments of 13 June and 14 August 2008 by the Swaziland Federation of Trade Unions (SFTU) and the comments of 29 August 2008 by the International Trade Union Confederation (ITUC) which referred to issues under examination, as well as to dismissals of workers who engaged in lawful strike actions, to serious acts of violence and brutality from the security forces against trade union activities and union leaders in general, and in particular during a strike in the textile sector, to the imprisonment of an union leader and threats to him and his family, and to the refusal from the public authorities to recognize trade unions. The Committee trusts that the Government will provide a detailed reply to these comments.

The Committee recalls that for many years it has been referring to certain 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. 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 (section 2 of the Industrial Relations Act (IRA)) have the right to organize in defence of their economic and social interests;

–      to amend section 29(1)(i) of the 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)), and 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); and

–      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 comments, the Committee noted that the Government and the social partners signed an agreement undertaking to set up a Special Consultative Tripartite Subcommittee 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 noted that the High-level Social Dialogue Committee decided, in respect of the constitutional issues, that the ongoing engagement between the Government and the National Constitutional Assembly, which extended beyond those groups in the Tripartite Subcommittee to involve other interest groups, should not be disturbed. Furthermore, the Committee noted, as regards legislative issues, that the Labour Advisory Board drafted an Industrial Relations (Amendment) Bill proposing amendments to the IRA in relation to sections 2, 29(1)(i), 85 and 86, taking into account comments made by the Committee (see above). The Committee nevertheless observed that some issues mentioned by the Committee were still not included in the draft or were pending consultation with the ILO (for example, the right to strike in sanitary services). The Committee notes from the Government’s report that the special committee appointed by the Labour Advisory Board to draft a proposed amendment to the Industrial Relations Act of 2000 with a view to bringing it into conformity with the Convention has submitted its report to the Labour Advisory Board whereby it proposed amendments to the IRA and made recommendations with regard to the Decree/State of Emergency Proclamation of 1973 and the Public Order Act of 1963.

The Committee trusts that all its comments will be taken into account in amending the Industrial Relations (Amendment) Bill and that it will be adopted without delay. It requests the Government to indicate any development in this regard. The Committee recalls that the Government may continue to benefit from the technical assistance of the Office in this regard.

Furthermore, the Committee urges the Government to take the necessary steps: (1) to abrogate the 1973 Decree/State of Emergency Proclamation and its implementing regulations concerning union rights; (2) to amend the 1963 Public Order Act so that it will not be used to repress lawful and peaceful strikes; and (3) to guarantee that prison staff have the right to organize in defence of their economic and social interests.