Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Trade union comments. The Committee notes the communication dated 4 August 2011 from the International Trade Union Confederation (ITUC) concerning the issues under examination, as well as allegations of continued repression of trade union activities in various sectors as well as police brutality against trade unionists. The Committee recalls that rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations. The Committee urges the Government to ensure that this principle is respected and requests it to provide its reply to the ITUC communication.

With regard to comments from the ITUC previously noted by the Committee that the Public Service Bill infringed upon the organizational rights of public sector workers, the Committee notes the communication dated 31 August 2011 from the Swaziland Federation of Trade Unions (SFTU) alleging the lack of political will to solve a number of issues under examination, including the fact that the Public Service Bill is continuing its legislative framework without being referred back to the Social Dialogue Committee as advised by the ILO. The Committee also notes from the Government’s report that the Bill is presently being debated by the House of Senate, after the social partners were given the opportunity to lobby the Senate on July 2011, and the assistance of an ILO expert which gave a presentation at the request of the Senators. The Government adds that, once the Bill is passed and promulgated into law, the parties would still have the possibility to propose amendments. The Committee expects that the Public Service Bill will be in full conformity with the provisions of the Convention with regard to the rights of public service workers. The Committee requests the Government to transmit a copy of the Bill once it is promulgated into law.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

The Committee notes the discussion which took place in the Conference Committee in June 2011. The Committee observes that the Conference Committee took note of a number of steps taken by the Government following the high–level tripartite mission which visited the country in October 2010. However, the Conference Committee firmly called upon the Government to intensify its efforts to institutionalize social dialogue and anchor genuine social dialogue through durable institutions at various levels of the Government, which could only be assured in a climate where democracy reigned and fundamental human rights were fully guaranteed. It urged the Government, in full consultation with the social partners and with the ongoing technical assistance of the ILO, to establish time frames for addressing all issues on an expedited basis. In this regard, the Conference Committee requested the Government to elaborate a roadmap for the implementation of the long-called-for measures.

Legislative issues. The Committee takes due note of the adoption and promulgation of the Industrial Relations (Amendment) Act of 2010 (Act No. 6 of 2010), a copy of which was transmitted by the Government. The Committee notes with satisfaction that the Act amends a number of provisions of the Industrial Relations Act (IRA), upon which it has been commenting for many years. In particular, the Committee observes that the new Act:

• -provides for the right to organize for domestic workers, by including domestic service in a household or a private house within the definition of “undertaking” (section 2(b) and (c) of the Act);
• -removes the restrictions on the nomination and eligibility of candidates for trade union office in section 29(1)(i) of the IRA (section 3 of the Act);
• -shortens the compulsory dispute settlement procedures provided in section 85(4) of the IRA by limiting the period for arbitration to 21 days (section 5 of the Act); and
• -ensures that the supervision of strike ballots by the Conciliation, Mediation and Arbitration Commission (CMAC) provided for in section 86 of the IRA may only occur upon request by an organization in terms of its statute or constitution (section 6 of the Act).

Other legal issues still pending. The Committee recalls that it has been requesting the Government for many years to amend the IRA to recognize the right to strike in sanitary services, and establish only a minimum service with the participation of workers and employers in the definition of such a service. The Committee previously noted that the Essential Services Committee had engaged in discussion with the trade union and the Staff Association on the determination of the minimum service that should be provided with respect to sanitary services. It observes from the latest report of the Government that Act No. 6 of 2010 provides for a clear definition of “sanitary services” in its section 2. The Committee requests once again the Government to provide information on the discussions held and the final outcome with respect to the determination of the minimum service to be afforded for sanitary services.

The Committee recalls that its previous comments requested information on the effect given in practice to section 40 of the IRA with regard to the civil liability of trade union leaders and, in particular, the charges that may be brought under section 40(13), as well as the effect given to section 97(1) (criminal liability of trade union leaders) of the IRA by ensuring that penalties applying to strikers do not in practice impair the right to strike. The Committee notes from the Government’s report that the proposal to amend section 40 (civil liability of trade union leaders) and section 97(1) (criminal liability of trade union leaders) of the IRA would be brought before the Labour Advisory Board before 31 March 2012. The Committee requests the Government to provide information in its next report on all progress made in this regard.

As regards the need to take measures to amend the legislation so as to guarantee for prison staff the right to organize in defence of their economic and social interests, the Committee recalls that in its previous comments it had noted that a Supreme Court judgment in relation to the organizational rights of the Correctional Services Union referred to the possibility of adopting appropriate legislation for these workers to enjoy their rights under the Convention, with the exception of the right to strike. The Committee notes from the Government’s latest report that the zero draft of the Correctional Services Bill was yet to be finalized by the Ministry of Justice and Constitutional Affairs with a view to being submitted to the Social Dialogue Committee. The Government adds that it requested the assistance of the ILO to give advice on best practices in the region. While expressing its firm hope that the assistance of the ILO will be provided rapidly, the Committee expects the Government to propose the necessary legislative amendments without further delay.

Finally, the Committee recalls that its previous comments referred to the following legal acts and proclamation which gave rise to practices contrary to the provisions of the Convention:

• – The 1973 Proclamation and its implementing regulations. The Committee recalls that it previously took note of the information provided by the Government in relation to the status of this Proclamation and, in particular, the “Attorney-General’s Opinion”, which stated that “on the coming into force of the Constitution, the Proclamation died a natural death”. The Committee however noted from the 2010 high-level tripartite mission report that, despite assurances of the Government to the contrary, the social partners considered that there remained a certain ambiguity and uncertainty in respect of the residual existence of the Proclamation. The Committee requests the Government to take all necessary steps to clarify that all provisions of the 1973 Proclamation are now null and void.
• – The 1963 Public Order Act. The Committee recalls that for a number of years it had requested the Government to take the necessary measures to amend the Act so as to ensure that it could not be used to repress lawful and peaceful strike action. The Committee previously noted from the conclusions of the 2010 high-level tripartite mission that, despite the provisions exempting trade union meetings from the scope of the Act, it appeared that the Act was resorted to in respect of trade union activities if it was considered that these activities included matters relating to broader calls for democratic reforms of interest to trade union members. In this respect, the Committee observed that the ban on displaying any flag, banner or other emblem signifying association with a political organization or with the promotion of a political object, which was added to the Act in 1968, apparently has affected the right of trade unions to carry out peaceful protest actions. The Committee requests the Government to provide information on the steps taken to ensure that the 1963 Public Order Act is not used in practice to repress lawful and peaceful strike action, including any police guidelines or other instructions that may be elaborated to this end, as well as to indicate the measures taken to amend the Act where its provisions may have given rise to undue interference in trade union meetings or protest actions.

The Committee takes note of the statement of the Government according to which consultation with the ILO technical assistance is ongoing to find a way forward. The Committee is informed of the ongoing technical assistance of the ILO and proposed recommendations on the various issues under examination. It also takes due note of the proposed roadmap which runs until 31 March 2012 endorsed by the Government to meet the recommendations of the Conference Committee. While acknowledging the Government’s openness and commitment, the Committee cannot but firmly hope that the Government will pursue its efforts in this regard, and expects it to take all necessary steps to address all remaining issues in line with the Committee’s previous request and in full consultation with the social partners and to provide information on the concrete progress made in this regard in its next report.

Report on the death in custody of a participant to the 2010 May Day demonstration. In its previous observation, the Committee noted with grave concern from the Conference Committee discussion and the high-level tripartite mission report the serious disruption of the 2010 May Day demonstrations, the series of arrests, and finally the death in custody of a participant in the demonstrations who had been arrested for wearing a t-shirt with the name of a political organization proscribed under the 2008 Suppression of Terrorism Act. The Committee notes from the Government’s report with regard to the death of the detainee that the conclusion in the coroner’s report is that the death was due to suicide; furthermore, the Committee notes the indication that the hearing was made public and that the family were allowed to use their own pathologist and legal representative throughout the hearing.

The Committee is raising other points in a request addressed directly to the Government.