Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

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

The Committee notes the observations received on 1 September 2014 from the International Trade Union Confederation (ITUC). The Committee also notes the observations received on 1 September 2014 from the International Organisation of Employers (IOE).

The Committee notes that the Government has provided updated information in relation to the outstanding issues in the framework of the ILO high-level fact-finding mission to Swaziland which took place in January 2014, as well as to the Committee on the Application of Standards (CAS) of the International Labour Conference in June 2014.

Follow-up to the discussion of the Committee on the Application of Standards (International Labour Conference, 103rd Session, May–June 2014)

The Committee notes the discussion which took place in the Conference Committee in June 2014, particularly with regard to the revocation of the registration of the Trade Union Congress of Swaziland (TUCOSWA) by the Government and the denial of its right to fully exercise its trade union rights. With regard to the amendment of the Industrial Relations Act (IRA) to allow for registration of federations, requested by the ILO supervisory bodies for two years, the Committee takes note of the written communication provided by the Government to the CAS whereby it specified that Parliament was dissolved on 31 July 2013 and Cabinet was fully constituted on 4 November 2013. Parliament officially opened again on 7 February 2014. This situation reduced parliamentary activity by seven months and left the Government with five months to comply with its undertakings before the International Labour Conference. It rendered it difficult for the Government to take the necessary legislative steps as there was no legislative authority to ensure that the amendments to the IRA were passed into law.

Registration of workers’ and employers’ federations. The Committee notes with concern the Government’s recent press statement No. 12/2014 issued in October 2014 according to which, pending the amendment of the IRA by Parliament, all federations should stop operating immediately. All memberships of the federations in statutory boards were also terminated. The Committee observes that the statement affected not only the TUCOSWA and other workers’ federations seeking registration but also the Federation of Swaziland Employers and Chambers of Commerce (FSE–CC) and the Federation of Swaziland Business Community (FESBC), which were also deregistered; and the Committee deplores this governmental decision which to all intents and purposes eliminates all voices of social partnership in the country and is a serious breach of Articles 2, 3, 5 and 6 of the Convention.

The Committee, however, notes that in November 2014 the Government reported on the adoption by the Parliament of the Industrial Relations (Amendment) Act, 2014 (Act No. 11 of 2014 published in the government Gazette of 13 November 2014), introducing provisions concerning the registration of employers’ and workers’ federations as well as amending provisions on the criminal and civil liability of trade unions. The Committee notes the Government’s indication that the amendment Act is a product of tripartite consensus and is operational with immediate effect.

The Committee welcomes the latest developments leading to the adoption of Act No. 11 of 2014 which now allows for the registration and recognition of workers’ and employers’ federations under the law. While noting the Government’s statement that it stands ready to handle applications for registration so that freedom of association is given full effect, the Committee trusts that the authorities will immediately register and recognize the legal personality of the TUCOSWA, the FSE–CC and the FESBC as soon as they present their applications for registration in order to fully comply with Articles 2, 3 and 5 of the Convention. The Committee requests the Government to provide information on the progress made in this regard.

In the meantime, the Committee urges the Government to ensure that all the workers’ and employers’ federations working within the country are fully assured of their freedom of association rights until their effective registration under the amended law, including the right to engage in protest action and peaceful demonstrations in defence of their members’ occupational interests, and to prevent any interference or reprisal against their leaders and members.

The Committee, noting the conclusions and recommendations of the Committee on Freedom of Association (CFA) in Case No. 2949 (373rd Report of the CFA, November 2014), observes with deep concern that the TUCOSWA’s lawyer, Mr Maseko, was arrested and sentenced to an especially long term in prison while defending the union’s constitutional challenge to its de-registration. The Committee also notes that the latest observations from the ITUC also relate to the situation of Mr Maseko who remains in jail. The Committee, as the CFA has already done, urges the Government to ensure Mr Maseko’s immediate and unconditional release and to provide information on any developments in this regard.

Legislative issues. In its previous comments, the Committee had requested the Government to amend the IRA such as to recognize the right to strike in sanitary services. The Committee notes with satisfaction the deletion of sanitary services from the list of essential services through the publication in the government Gazette of legal notice No. 149 of 2014. The Committee further takes due note of the information provided by the Government on the status of its long standing requests concerning amendments and modifications to the following legal texts:

• -The Public Service Bill: The Committee notes that the Bill was reviewed by the Labour Advisory Board and is now with the Ministry of Public Service for adoption. Thereafter, it will be submitted to Cabinet for approval and publication and brought to Parliament for processing.
• -The IRA: In relation to the Committee’s previous recommendations concerning the civil and criminal liabilities of trade union leaders, the Committee notes the Government’s amendment to paragraph 40 in its latest reply.
• -The 1973 Proclamation and its implementing regulations: In relation to the status of this Proclamation, the Committee notes the Government’s reiteration that the Proclamation was superseded by the Constitution which is now the supreme law of the land. As such, the exercise of all executive, judicial and legislative power and authority is guided by the Constitution and not at all by the 1973 Proclamation.
• -The 1963 Public Order Act: The Committee has been requesting the Government for a number of years to take the necessary measures to amend the Public Order Act so as to ensure that the Act could not be used to repress lawful and peaceful strike action. The Committee notes that the Government has referred to a shortage of expertise at the national level in this regard and has requested the Office to assist it. Terms of reference were given to the ILO Subregional Office in Pretoria in April 2014 and the drafting process is due to commence as soon as the legislative drafter has been identified.
• -The Correctional Services (Prison) Bill: In relation to the recognition of the right to organize for prison staff, the Committee notes that the Labour Advisory Board has finished debating the Bill and has compiled a report of its views on the Bill. The Board’s comments will be sent to the ministry responsible for correctional services.
• -The Code of good practice for protest and industrial action: The Committee notes that the Code has been considered by the social partners and the police, and technical assistance to facilitate the process of finalization and implementation of the Code was requested from the Office.

The Committee trusts that the Government will endeavour to provide in its next report detailed information on concrete and definite progress on these legislative and administrative matters in order to move towards compliance with the provisions of the Convention.

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

[The Government is asked to reply in detail to the present comments in 2015.]