Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Eswatini (Ratification: 1978)

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

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The Committee notes the observations received on 4 September 2023 from the Trade Union Congress of Swaziland (TUCOSWA), on 27 September 2023 from the International Trade Union Confederation (ITUC) and the International Transport Workers’ Federation (ITF) and on 28 September 2023 from Education International (EI). The Committee notes the reply of the Government to some allegations.

The Committee notes the following allegations received from ITUC and ITF that one of the largest logistics companies engaged in acts of interference and union busting against the Swaziland Transport, Communication and Allied Workers’ Union (SWATCAWU) and the management of the company has refused to engage in collective bargaining and has been reported to harass workers into joining a “yellow union”. In its reply, the Government states that the logistics company refutes the allegations of harassment of workers to join a “yellow union”. Furthermore, the Government regrets that the allegations made were not forwarded to it before being submitted to the Office, which runs counter to the efforts to encourage national social dialogue and the exhaustion of internal remedies before complaints are submitted to the supervisory bodies of the Organization. The Committee further notes the allegations of the international trade union organizations that many employers in the textile and apparel sectors refuse to engage with trade unions for the purposes of collective bargaining. The Committee requests the Government to provide its comments thereon.

The Committee notes that EI puts forward challenges and discrepancies in law and practice that compromise the effectiveness of collective bargaining agreements and hinder the professional development and entitlements of teachers. EI also underlines that the increasing reliance on contract teachers undermines the power of unions in the education sector, as contract teachers are more susceptible to intimidation and less likely to participate in union activities to demand improved teaching conditions. The Committee requests the Government to provide its comments thereon, indicating any consultation with the representative organizations in the education sector to overcome the issues raised.

The Committee recalls that, previously, TUCOSWA made observations on the restrictions to the right to collective bargaining in public enterprises under section 10(1) of the Public Enterprise (control and monitoring) Act, 1989. The Committee notes the reply from the Government that TUCOSWA submitted this issue, among others, under a complaint presented to the Committee on Freedom of Association in March 2022 (Case No. 3425), and that through a national voluntary conciliation process in June 2023, the Government and TUCOSWA have agreed that the on-going legislative review of the Public Enterprises Act should include wide consultation of the social partners.

Article 4 of the Convention. Promotion of collective bargaining mechanisms. The Committee recalls that in previous reports the Government informed of the low compliance with the provisions of section 55(2) of the IRA whereby signed collective agreements shall be submitted to the Industrial Court for registration with a copy to the Commissioner of Labour. Since this failure to comply resulted in some collective agreements not known to the office of the Commissioner of labour, the Government indicated its intention to initiate a campaign to sensitize the social partners about the importance of complying with the requirements of the IRA through regular communications at the national radio. The Government indicates that the Ministry of Labour and Social Security is pursuing its campaign, advocating for the establishment of workplace fora and collective bargaining towards the formation of Workers Councils, trade unions and staff associations. Similar trainings are provided by the Conciliation, Mediation and Arbitration Commission in the context of its statutory mandate of dispute prevention and resolution. However, the Government reports that the main cause for the decline in the registration rate of collective agreements with the Industrial Court is mainly associated with the level of trust between the parties. Moreover, the Government acknowledges the constraints surrounding the registration of collective agreements in Court and therefore the number of registered collective agreements does not depict the appropriate statistics of signed agreements in a year. The Committee observes, from the statistics provided, the relatively low number of collective agreements registered by the Industrial Court from 2020 to 2023 (9 in 2020, 9 in 2021, 12 in 2022 and 3 up to September 2023). The committee encourages the government to continue to provide information on the measures taken to promote collective bargaining and to report on any corrective measures taken or envisaged, in consultation with the social partners, to overcome the practical blockades, so to promote the full development and utilisation of collective bargaining under the Convention. Finally, the Committee requests the Government to provide information on the number of collective agreements signed and in force, and to specify the sectors concerned and the number of workers covered by these agreements.

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the observations of the Trade Union Congress of Swaziland (TUCOSWA) received on 30 August 2020, concerning: (i) allegations of restrictions to the right to collective bargaining in public enterprises, both in law – section 10(1) of the Public Enterprise (control and monitoring) Act – and practice; and (ii) the refusal of a pulp and paper company to pay termination benefits to workers dismissed, despite a collective agreement. Recalling that employees of public enterprises should be able to negotiate collectively their wage conditions, the Committee requests the Government to send its comments with respect to the TUCOSWA’s observations.

The Committee further notes the observations of Education International received on 20 September 2019 on discriminatory measures affecting the President of the Swaziland National Association of Teachers (SNAT), and the reply of the Government thereto. In this respect, the Committee also refers to its comments under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.87), whereby it requests the Government to reply to allegations from TUCOSWA on anti-union measures against union leaders, including of the SNAT.

Article 4. Promotion of collective bargaining mechanisms. In its previous comments, the Committee requested the Government to continue to provide information on steps taken to promote collective bargaining in all sectors, including measures taken to implement section 42 of the Industrial Relations Act (IRA) on the recognition as collective employee representatives, as well as information on the number of collective agreements signed and the number of workers covered. The Committee notes the indication that most employers grant recognition agreements to registered workers’ organisations without need to resort the matter to arbitration under the provisions of section 42 of the IRA. This is evidenced by the low number of case load at the Conciliation, Mediation and Arbitration Commission (CMAC) wherein recognition disputes ought to be reported (41 applications or disputes for recognition filed between 2017 and 2019). Furthermore, the Committee notes that while it provides statistics on the number of collective agreements registered by the Industrial Court from 2017 to 2019 (22 in 2017, 26 in 2018 and 16 up to 31 August 2019), the Government informs of the low compliance with the provisions of section 55(2) of the IRA whereby signed collective agreements shall be submitted to the Industrial Court for registration with a copy to the Commissioner of Labour. The Government considers that this failure to comply results in a number of collective agreements not known to the office of the Commissioner of labour, and indicates its intention to sensitize the social partners about the importance of complying with the requirements under section 55(2) of the IRA through regular communications at the national radio. The Committee invites the Government to inform about any fluctuation in the number of registered collective agreements as a result of the sensitization campaign. It also invites the Government to provide information on any other measures taken to promote collective bargaining and to continue providing information on the number of collective agreements signed, the sectors and the number of workers covered.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and interference. The Committee had previously requested the Government to provide information on any development with regard to the measures envisaged to ensure that workers and their organizations are effectively protected against acts of interference and anti-union discrimination. The Committee notes the detailed information provided on steps taken to improve protection against acts of anti-union discrimination. It refers to the recently adopted Codes of Good Practice with a view to ensuring that workers and their organizations are effectively protected against acts of interference and anti-union discrimination.

Article 4. Promotion of collective bargaining mechanisms. In its previous comments, the Committee requested the Government to continue to provide information on steps taken to promote collective bargaining in all sectors, including measures taken to implement section 42 of the Industrial Relations Act (IRA), as well as information on the number of collective agreements signed and the number of workers covered. The Committee notes the detailed information provided on the functioning of the wages councils which set the basic minimum terms upon which better or improved terms and conditions can be negotiated by unions. The Committee also notes the information provided in related training activities and the designing of a training module on the subject of “Collective Bargaining and Negotiation Skills for Management and Union Officials”. The Government further refers to radio programmes complemented by the Conciliation, Mediation and Arbitration Commission (CMAC) which cover various topics, including promotion of collective bargaining. Moreover, the development of its labour inspection policy has been prioritized with a view to, among others, promoting the establishment of workplace forums to facilitate collective bargaining or employer/employee consultation forums at the workplace. The Committee further notes the courts’ judgments provided by the Government upholding the legally binding nature of collective agreements. The Committee requests the Government to continue providing information on the application of section 42 of the IRA as well as information on any collective agreements signed and the number of workers covered.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and interference. The Committee had previously requested the Government to indicate measures taken to ensure that workers and their organizations are effectively protected against acts of interference and anti-union discrimination. In its reply, the Government recalls that this was part of the agenda of the Labour Advisory Board, which acknowledged the need for a study to be undertaken especially in the textile sector which is the most affected. The Government also considers an awareness-raising campaign through radio programmes and road shows as well as on-the-ground work by the Labour Inspectorate, in order to discourage interference and anti-union discrimination behaviours. The Government adds that the ILO technical assistance will be sought. It also informs that the worker members of the Labour Advisory Board noted, in relation to the Government’s report, that trade union meetings are still monitored by the police despite their registration. The Committee requests the Government to provide information on any development with regard to the measures envisaged to ensure that workers and their organizations are effectively protected against acts of interference and anti-union discrimination, in accordance with the Convention.

Article 4. Promotion of collective bargaining mechanisms. The Committee had previously requested the Government to provide information on the status of collective bargaining in all sectors, including in export processing zones (EPZs), following the entry into force of the Industrial Relations (Amendment) Act No. 6 of 2010, which modified section 42 of the Industrial Relations Act (IRA) by requiring employers with more than two unrecognized unions to give collective bargaining rights to such unions to negotiate on behalf of their members. The Committee notes that in its report the Government acknowledges that section 42 of the IRA as amended has not been resorted to, and that there are therefore no recorded cases of collective bargaining pursuant to the amendment. In order to improve the situation, the Government is willing to seek technical assistance from the ILO, and the Labour Advisory Board suggests mobilizing appropriate national capacity. The Government further specifies that, by virtue of the Wages Act of 1964, there are presently 18 sector-based wages councils that undertake collective bargaining on conditions of work issues, including wage adjustment, hours of work, overtime pay, maternity leave and annual leave. The Committee observes in this respect that, by the virtue of section 6 of the Wages Act of 1964, while the Minister consults representative organizations to appoint one member representing the employers and one member representing the workers, the Minister also appoints directly three members as being independent persons, including the chairperson. While acknowledging that it is up to the legislative authority to determine the legal minimum standards for conditions of work, and that the fixing of minimum wages may be subject to decision by tripartite bodies, the Committee recalls the principle under Article 4 of the Convention that any collective agreement fixing conditions of employment should be the result of bipartite bargaining without interference from the Government. The Committee trusts that the wages councils set by virtue of the Wages Act operate in compliance with this principle and requests the Government to provide information on the functioning of these sector-based councils, and in particular to specify any agreement reached.

With regard to the textile sector, the Government asserts that it has promoted awareness on the provisions of the law regarding collective bargaining, through workshops which resulted in the formation of a joint negotiation council in the EPZs, but that the arrangement did not last due to some employers pulling out for various reasons. With regard to collective bargaining in the public sector, the Government indicates that public sector trade unions engage in collective bargaining with the Government in the Joint Negotiation Team (JNT) to set salaries and benefits in the public sector on an annual basis, and that there is no restriction as to the subject of negotiation.

While taking due note of the details provided, the Committee requests the Government to continue to provide information on steps taken to promote collective bargaining in all sectors, including measures taken to implement section 42 of the IRA, as well as information on the number of collective agreements signed and the number of workers covered.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Comments received from the International Trade Union Confederation. The Committee notes the communication dated 31 July 2012 from the International Trade Union Confederation (ITUC) which denounces continued repression of trade union activities and reports police brutality and harassment against trade unionists and trade union leaders of the Swaziland Federation of Trade Unions (SFTU), the Swaziland Federation of Labour (SFL) and the Swaziland National Association of Teachers (SNAT), and the arrest and expulsion of officials from the Congress of South African Trade Unions (COSATU). In view of the seriousness of these allegations, the Committee cannot but firmly recall that rights of employers’ and workers’ organizations can only be guaranteed where fundamental human rights are respected and 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 comments of the ITUC.

The Committee had previously noted allegations from the ITUC on a number of acts of anti-union discrimination in the textile sector and in export processing zones (EPZs), and requested information on collective bargaining practices in the EPZs. The Committee notes the indication that, out of 23 textile factories inspected in 2011 in the EPZs, only six had a recognition agreement with the trade unions, which shows limited collective bargaining in the sector. However, the Government also presents the possibility for a trade union seeking recognition to refer a dispute to the Conciliation Mediation and Arbitration Commission (CMAC) under section 42 of the Industrial Relations Act as amended in 2005. The Committee further notes that in its communication the ITUC alleges that collective bargaining in the public sector is restricted in its coverage since the Ministry of Public Administration, Employment and Social Security sets wages and benefits on an annual basis in consultation – but without negotiation – with the trade unions. The Committee requests the Government to provide information on the status of collective bargaining in all sectors, including in the EPZs, following the entry into force of Industrial Relations (Amendment) Act No. 6 of 2010 which modified section 42 by requiring employers with more than two unrecognized unions to give collective bargaining rights to such unions to negotiate on behalf of their members (the Committee had noted this progress in its previous comments). It also requests the Government to clarify whether negotiation with trade unions is possible when setting wages and benefits in the public sector.

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and interference. The Committee recalls that its previous comments referred to the need to adopt specific provisions accompanied by sufficiently dissuasive sanctions for the protection of workers’ organizations against acts of interference by employers or their organizations. The Committee notes the Government’s statement according to which this matter is part of the agenda of the Labour Advisory Board meeting scheduled in October 2012 and any progress made in this regard will be reported back to the Committee. The Committee requests the Government to indicate any progress made to ensure that workers and their organizations are effectively protected against acts of interference and anti-union discrimination (in view of the allegations of the ITUC), in accordance with the Convention.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the information provided in the Government’s report, as well as the comments of the International Confederation of Trade Union (ITUC), which refer to issues already under examination, as well as to a number of acts of anti-union discrimination in the textile sector and in export processing zones (EPZs), and to the denial of collective bargaining to prison staff and problems in practice in the banking sector, demonstrating weaknesses in the collective bargaining machinery. In its previous comments, the Committee had noted the Government’s indication that the issue of anti-union discrimination in the textile sector was being addressed and a report would be submitted in due course. The Committee notes the Government’s response to these allegations. In particular, the Government states that there are two powerful trade unions in the EPZs: the Swaziland Manufacturing and Allied Workers Union (SMAWU) and the Swaziland Processing Refining and Allied Workers Unions (SPRAWU) and that they are fully covered by the rights consecrated in the Constitution and the Industrial Relations Act, 2000, as amended. As the Government does not specifically address the allegations of anti-union discrimination in the EPZs in practice, the Committee requests it to provide any available information and statistics from the labour inspectorate in this regard, as well as any remedial measures eventually taken.

The Committee recalls that its previous comments referred to the following points:

–      the need to adopt specific provisions accompanied by sufficiently dissuasive sanctions for the protection of workers’ organizations against acts of interference by employers or their organizations (Article 2 of the Convention); and

–      the need to adopt a specific legislative provision so as to ensure that, if no union covers more than 50 per cent of the workers, this does not prevent the exercise of the collective bargaining rights of the unions in the unit at least on behalf of their own members (Article 4 of the Convention).

The Committee notes with satisfaction that section 42 of the Industrial Relations Act (IRA) has been amended so as to provide that, where in an establishment employees are represented by more than two trade unions whose respective membership does not cover at least 50 per cent of the employees eligible to join the union, the employer shall grant collective bargaining rights to the unions to negotiate on behalf of their members (now published as the Industrial Relations (Amendment) Act No. 6 of 2010).

The Committee recalls that, in its previous comments, it had noted the Government’s indication that the issue of the adoption of specific provisions, accompanied by sufficiently dissuasive sanctions, for the protection of workers’ organizations against acts of interference by employers or their organizations, as required by Article 2 of the Convention, was being addressed. The Committee regrets that the Government has not provided any information on the developments in this regard. It requests the Government to put this matter before the Labour Advisory Board or the Steering Committee on Social Dialogue so as to ensure that workers and their organizations are effectively protected against acts of interference and anti-union discrimination, in accordance with the Convention.

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

The Committee notes the comments of the International Confederation of Trade Union (ITUC), the Swaziland Federation of Trade Unions (SFTU) and the International Confederation of Free Trade Unions (ICFTU, now ITUC) which refer to issues already under examination, as well as to a number of acts of anti-union discrimination in the textile sector and in export processing zones, and to the denial of collective bargaining to prison staff. The Committee notes from the reply of the Government that the issue of anti-union discrimination in the textile sector is being addressed and a report will be submitted in due course. The Committee trusts that the Government will take all necessary steps to submit promptly a report in respect of all the comments from the ITUC and the SFTU.

The Committee recalls that in its previous comments it referred to the following points:

–      the need to adopt specific provisions accompanied by sufficiently dissuasive sanctions for the protection of workers’ organizations against acts of interference by employers or their organizations (Article 2 of the Convention); and

–      the need to adopt a specific legislative provision so as to ensure that, if no union covers more than 50 per cent of the workers, this does not prevent the exercise of the collective bargaining rights of the unions in the unit at least on behalf of their own members (Article 4 of the Convention).

In its previous comments, the Committee noted that the Labour Advisory Board (LAB), of a tripartite nature, reviewed the legislative issues raised by the Committee and drafted an Industrial Relations (Amendment) Bill which included a number of amendments to the Industrial Relations Act. The Bill referred to the need to tackle the issue of adopting a specific legislative provision so as to ensure that, if no union covers more than 50 per cent of the workers, this does not prevent the exercise of collective bargaining rights by the unions in the unit, at least on behalf of their own members.

The Committee notes from the Government’s report that the issue of the adoption of specific provisions, accompanied by sufficiently dissuasive sanctions, for the protection of workers’ organizations against acts of interference by employers or their organizations, as required by Article 2 of the Convention, is being addressed. The Committee also notes the Government’s intention to keep it informed of any developments in this regard.

While noting that the Government reiterates that the LAB has commissioned a special committee to draft amendments in line with the recommendations made by the ILO high-level mission and the independent judiciary inquiry after their visit, the Committee trusts that the Government will provide information in its next report on concrete legislative measures taken to address the issues at stake.

The Committee recalls the availability of the technical assistance of the Office in the framework of the legislative amendment process, and trusts that the legislation will be brought shortly into full conformity with the requirements of the Convention. It requests the Government to provide information on any developments in this regard.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report. In its previous observation, the Committee noted the comments of the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) of 10 August 2006, which referred to issues that have already been examined and a number of acts of anti-union discrimination in the textile sector. The Committee once again requests the Government to send its observations in respect of the ICFTU comments.

The Committee recalls that in its previous comments it referred to the following points:

–           the need to adopt specific provisions accompanied by sufficiently effective and dissuasive sanctions for the protection of workers’ organizations against acts of interference by employers or their organizations (Article 2 of the Convention); and

–           the need to adopt a specific legislative provision so as to ensure that, if no union covers more than 50 per cent of the workers, this does not prevent the exercise of the collective bargaining rights of the unions in the unit at least on behalf of their own members (Article 4 of the Convention).

The Committee notes from the report of the Government that a process has already commenced within the social dialogue framework for all the comments of the Committee to be addressed positively. A high-level steering committee has already been established and has already decided to fast-track the comments by setting up subcommittees and task teams to deal with them and submit their draft by the end of February 2007. The Committee notes that, in this process, the Government is counting on the technical assistance of the Office.

The Committee has been recently informed that the Labour Advisory Board (LAB), of tripartite nature, is reviewing the legislative issues raised by the Committee for many years and has drafted an Industrial Relations (Amendment) Bill which includes a number of amendments to the Industrial Relations Act. The Bill refers to the need to tackle the issue of adopting a specific legislative provision so as to ensure that, if no union covers more than 50 per cent of the workers, this does not prevent the exercise of the collective bargaining rights of the unions in the unit, at least on behalf of their own members. The Committee, however, notes that the draft does not address the issue of the adoption of specific provisions, accompanied by sufficiently effective and dissuasive sanctions, for the protection of workers’ organizations against acts of interference by employers or their organizations, as required by Article 2 of the Convention. The Committee requests the Government to take the necessary measures to address also this issue in the draft Bill.

The Committee encourages the Government to continue its efforts to review and amend the legislation, where necessary with the technical assistance of the Office, and expresses the hope that the legislation will be brought into full conformity with the requirements of the Convention in the near future. It requests the Government to provide information on any developments in this regard.

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

The Committee notes that no report has been received from the Government. The Committee notes the observations of the International Confederation of Free Trade Unions (ICFTU) of 10 August 2006, which refer to issues that have already been examined and a number of acts of anti-union discrimination in the textile sector. The Committee asks the Government to send its comments on these observations.

The Committee also notes the report of the high-level mission that visited Swaziland from 21 to 27 June 2006 at the request of the Conference Committee on the Application of Standards in 2005 within the framework of the examination of the application of Convention No. 87.

The Committee recalls that in its previous comments it referred to the following points:

–           the need to adopt specific provisions accompanied by sufficiently effective and dissuasive sanctions for the protection of workers’ organizations against acts of interference by employers or their organizations, as required pursuant to Article 2 of the Convention; and

–           the need to adopt a specific legislative provision so as to ensure that if no union covers more than 50 per cent of the workers, collective bargaining rights are granted to the unions in the unit, at least on behalf of their own members (Article 6 of the Convention).

In this respect, the Committee notes with interest that, at the suggestion of the high-level mission, the Government and the social partners signed an agreement by which they undertake to establish, within the framework of the High-level Executive Committee on Social Dialogue formed in 2005, a special tripartite advisory committee to make recommendations to the competent authorities in order to eliminate the existing discrepancies between the legislation and the Articles of the Convention. The Committee also notes that the aforementioned agreement provides that the subcommittee shall begin work quickly and that it shall communicate a progress report to the ILO by the end of April 2007. The Committee hopes that this legislation will be brought into line with the requirements of the Convention and asks the Government to provide information on any developments in this regard in its next report.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report. It further notes the observations received from the International Confederation of Free Trade Unions.

1. Article 2 of the Convention. In its previous comments, the Committee referred to the need to adopt a specific provision accompanied by sufficiently effective and dissuasive sanctions for the protection of workers’ organizations against acts of interference by employers or their organizations as required pursuant to Article 2 of the Convention. The Committee notes, however, that the Government considers that sections 39, 42, 98, 99, 100 and 101 of the Industrial Relations Act of 2000 (the Act) and sections 35 and 36 of the Employment Act of 1980 provide for sufficient protection. The Committee notes that the provisions mentioned by the Government do not expressly provide for the prohibition of all acts of interference, as required by Article 2 of the Convention. The Committee once again stresses that, to ensure the application in practice of Article 2, the legislation should contain an express provision in this respect, coupled with effective and dissuasive sanctions against acts of interference. The Committee therefore reiterates its request.

2. In its previous observation, referring to section 52 of the Act, the Committee requested the Government to take measures to ensure that there was sufficient protection against employers’ interference in the creation and functioning of works councils as well as against collective bargaining with non-unionized workers where there was a sufficiently representative trade union. The Committee notes with interest that section 52 of the Act was amended so as to ensure that the establishment of a works council in an undertaking no longer depends on the free will of an employer, as new section 52(1) requires an employer to establish one if his enterprise employs 25 or more employees. Furthermore, according to section 52, as amended, once a trade union has obtained its recognition, the enterprise works council loses its right to negotiate a collective agreement.

3. Article 6. The Committee previously noted that, according to section 42 of the Act, where the union has less than 50 per cent of employees, recognition of the union as employees’ representative is at the discretion of the employer. While noting the Government’s statement that, although the Act provides for recognition of workers’ organizations on attainment of 50 per cent or more, in practice employers are encouraged to accord voluntary recognition in the bargaining unit concerned, the Committee nevertheless requests the Government to take the necessary measures in order to adopt a specific legislative provision so as to ensure that if no union covers more than 50 per cent of the workers, collective bargaining rights are granted to the unions in the unit, at least on behalf of their own members.

The Committee hopes that the legislation will be brought into full conformity with the requirements of the Convention in the near future.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report.

The Committee notes the adoption of the Industrial Relations Act, 2000 (the Act). The Committee also notes the ILO technical advisory mission to the country (November 2000) during which preliminary draft amendments to the Act were prepared with the authorities.

In its previous comments, the Committee referred to the need to adopt a specific provision accompanied by sufficiently effective and dissuasive sanctions for the protection of workers’ organizations against acts of interference by employers or their organizations as required pursuant to Article 2 of the Convention. The Committee notes, however, that the Act contains no such provision. The Committee, therefore, recalls the need to adopt a specific provision accompanied by sufficiently effective and dissuasive sanctions for the protection of workers’ organizations against acts of interference by employers or their organizations.

The Committee also notes that the Act sets up a system of works councils (section 52) which only the employer is entitled to establish; there is also no provision setting out the manner in which the representatives of the works council are to be appointed, and the works councils may negotiate terms and conditions of employees who are not members of a trade union. In the view of the Committee, such a system may give rise to employer interference and undermine the role of representative trade unions, and does not promote collective bargaining with workers’ organizations as envisaged in Article 4 of the Convention. The Committee notes that a preliminary draft amendment of section 52 was prepared within the framework of the technical advisory mission. The Government is requested to take measures to ensure that there is sufficient protection against employer interference in the creation and functioning of works councils as well as against collective bargaining with non-unionized workers where there is a sufficiently representative trade union.

The Committee notes further that the Act provides for mandatory recognition where the trade union seeking recognition has as members over 50 per cent of the employees of the unit concerned, and provides for recognition at the discretion of the employer where the union has less than 50 per cent (section 42). The Committee recalls its previous comments in this regard, that if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to the unions in the unit, at least on behalf of their own members.

The Committee hopes that the legislation will be brought into full conformity with the requirements of the Convention in the near future.

The Committee notes the comments on the application of the Convention submitted by the Federation of Swaziland Employers and asks the Government to send its observation thereon.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information provided in the Government’s report, in particular the adoption of the Industrial Relations Act, 2000 (the Act). The Committee also notes the recent ILO technical advisory mission to the country (November 2000) during which preliminary draft amendments to the Act were prepared with the authorities.

The Committee notes with satisfaction that the definition of "employee" in section 2 of the Act no longer excludes casual workers; thus these workers are no longer excluded from the rights set out in the Convention.

In its previous comment, the Committee referred to the need to adopt a specific provision accompanied by sufficiently effective and dissuasive sanctions for the protection of workers’ organizations against acts of interference by employers or their organizations as required pursuant to Article 2 of the Convention. The Committee notes, however, that the Act contains no such provision. The Committee, therefore, recalls the need to adopt a specific provision accompanied by sufficiently effective and dissuasive sanctions for the protection of workers’ organizations against acts of interference by employers or their organizations.

The Committee also notes that the Act sets up a system of works councils (section 52) which only the employer is entitled to establish; there is also no provision setting out the manner in which the representatives of the works council are to be appointed, and the works councils may negotiate terms and conditions of employees who are not members of a trade union. In the view of the Committee, such a system may give rise to employer interference and undermine the role of representative trade unions, and does not promote collective bargaining with workers’ organizations as envisaged in Article 4 of the Convention. The Committee notes that a preliminary draft amendment of section 52 was prepared within the framework of the technical advisory mission. The Government is requested to take measures to ensure that there is sufficient protection against employer interference in the creation and functioning of works councils as well as against collective bargaining with non-unionized workers where there is a sufficiently representative trade union.

The Committee notes further that the Act provides for mandatory recognition where the trade union seeking recognition has as members over 50 per cent of the employees of the unit concerned, and provides for recognition at the discretion of the employer where the union has less than 50 per cent (section 42). The Committee recalls its previous comments in this regard, that if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to the unions in the unit, at least on behalf of their own members.

The Committee hopes that the legislation will be brought into full conformity with the requirements of the Convention in the near future.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes with regret that the Government's report has not been received. It must therefore repeat its previous observation on the following discrepancies between the 1996 Industrial Relations Act and the provisions of the Convention:

Scope of application of the Act. The need to extend the term "employee" to cover casual workers with regard to the rights enshrined in the Convention. Article 2 of the Convention. The need to adopt a specific provision accompanied by sufficiently effective and dissuasive sanctions for the protection of workers' organizations against acts of interference by employers or their organizations. Article 4. The elimination of restrictions on the level of collective bargaining (sections 40 and 45(4) of the Industrial Relations Act). Furthermore, noting that the Industrial Relations Act provides for exclusive recognition rights of a union representing more than 50 per cent of employees in a unit, and provides for recognition at the discretion of the employer where 50 per cent or less are represented, the Committee stressed the importance of promoting further the rights of unions where no union or group of unions has majority support, to enable them to negotiate an agreement at least on behalf of their own members. Noting that a draft industrial relations bill has been prepared in consultation with the social partners and with the technical assistance of the Office, the Committee hopes that the Government will make every effort to take the necessary action in the very near future to ensure the full application of this Convention.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the information provided in the Government's report, in particular regarding the enactment of the Industrial Relations Act, 1996 (Act No. 1 of 1996).

Scope of application. The Committee notes that arising from the definition of an "employee" in section 2, the provisions of the Industrial Relations Act in Part IV regarding collective bargaining and Part IX regarding freedom of association and the right to organize, do not protect casual employees. The Committee requests the Government to indicate whether and to what extent casual workers can be represented by a trade union taking part in collective bargaining.

Article 2 of the Convention. Whilst noting the Government's indication in its report that section 82 of the Industrial Relations Act ensures that workers are protected against interference by public officers, the Committee regrets that the new Act has not given effect to the comments it made in its previous observations concerning this issue. The Committee, therefore, recalls the need to adopt a specific provision accompanied by sufficiently effective and dissuasive sanctions for the protection of workers' organizations against acts of interference by employers or their organizations.

Article 4 of the Convention. The Committee notes with interest that the power to refuse to register a collective agreement on the grounds that it is inconsistent with government directives on wages and wage levels, which was the subject of previous observations, has not been maintained in the Industrial Relations Act.

Regarding the levels of bargaining, pursuant to section 40 of the Industrial Relations Act, federations do not seem to be able to take part in collective bargaining. The Committee recalls that the right to bargain collectively should also be recognized with respect to federations and confederations (see 1994 General Survey, op. cit., paragraph 249). In addition, it appears that pursuant to section 45(4) bargaining at the industry level cannot take place unless the Commissioner of Labour considers the establishment of a Joint Industrial Council to be "desirable or practicable". The Committee points out that, since the Convention contemplates voluntary collective bargaining, the choice of the bargaining level should normally be made by the partners themselves.

Noting that the Industrial Relations Act provides for exclusive recognition rights of a union representing more than 50 per cent of employees in a unit, and provides for recognition at the discretion of the employer where 50 per cent or less are represented, the Committee stresses the importance of promoting further the rights of minority unions where no union or group of unions has majority support, to enable them to negotiate an agreement at least on behalf of their own members.

The Committee notes that section 42 limits the ability of an organization or federation to devote more than a certain amount of time and funds to issues of public policy or public administration, one of the possible penalties for which is the suspension of exclusive bargaining rights. The Committee refers to its comments on this issue in its 1996 observation on Convention No. 87.

The Committee requests the Government to take the measures necessary to amend the Industrial Relations Act so as to bring it into full conformity with the provisions of the Convention, and points out that ILO technical assistance is available in this regard.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the Government's report.

The Committee recalls that, in its previous comments, it had referred to the following points which derive from the 1980 Industrial Relations Act.

Article 2 of the Convention. The need to adopt a specific provision accompanied by sufficiently effective and dissuasive sanctions for the protection of workers' organizations against acts of interference by employers and their organizations.

Article 4. The need to restrict the occupational tribunals' power to refuse registration except on procedural grounds or because the clauses of the agreements are not consistent with the minimum standards of labour legislation, whereas at present the tribunal is able to refuse registration of collective agreements that are not consistent with government directives on wages and wage levels.

The Committee notes with interest that, according to the information in the Government's report, a draft Industrial Relations Act which takes into account the Committee's comments has been elaborated and submitted to the Parliament in 1995. This draft has already been approved by the National Assembly and is to be submitted to the Senate. In addition, the draft amendment to the Employment Act of 1995 has also been elaborated and is to be discussed before a tripartite commission prior to being submitted to the competent authority. The Government adds that it will transmit a copy of these two texts once they have been adopted.

The Committee trusts that these two texts will bring the legislation into full conformity with the requirements of the Convention. It requests the Government to furnish a copy of these two texts with its next report even if they have not yet been adopted so that it may examine their conformity with the Convention. If the texts have been adopted, the Committee requests the Government to transmit them in their final version.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the Government's report. In its previous comments, the Committee referred to the following points which derive from the 1980 Industrial Relations Act.

Article 2 of the Convention. The need to adopt a specific provision accompanied by sufficiently effective and dissuasive sanctions for the protection of workers' organizations against acts of interference by employers and their organizations.

Article 4. The need to restrict the occupational tribunals' power to refuse registration except on procedural grounds or because the clauses of the agreements are not consistent with the minimum standards of labour legislation, whereas at present the tribunal is able to refuse registration of collective agreements that are not consistent with government directives on wages and wage levels.

The Government indicates in its report that a draft Industrial Relations Act prepared with the technical assistance of the Office has been submitted to the Labour Advisory Board for comments but that there was no agreement on whether the document should be modified before recommendations could be made for its adoption, and that a tripartite commission has been appointed to inquire into all aspects of labour but had not yet given its report.

The Committee hopes that the Government will take the necessary measures and that the legislation will be amended so as to give full effect to the Convention. It asks the Government to keep it informed of any developments in that matter.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee takes note of the Government's report. With reference to its previous comments, particularly the detailed observation of 1989, the Committee recalls that the discrepancies between national legislation and the Convention concern the following points which derive from the 1980 Industrial Relations Act.

Article 2 of the Convention. The need to adopt a specific provision accompanied by sufficiently effective and dissuasive sanctions for the protection of workers' organisations against acts of interference by employers or their organisations.

Article 4 of the Convention. The need to restrict the occupational tribunals' power to refuse registration of collective agreements. The tribunal should not be able to refuse registration except on procedural grounds or because the clauses of the agreements are not consistent with the minimum standards of labour legislation, whereas at present the tribunal is able to refuse registration of collective agreements that are not consistent with government directives on wages and wage levels.

The Government states that it requested and obtained technical assistance from the ILO and hopes to be able to amend the 1980 Industrial Relations Act so as to make it compatible with the provisions of the Convention.

The Committee notes that the Government is currently receiving technical assistance from the ILO to revise its labour legislation and trusts that it will take account of its previous comments so that the amended legislation will give effect to the Convention. It also hopes that the planned amendments to the legislation will be adopted rapidly. It asks the Government to state exactly what measures have already been taken to this end and to provide the texts of the amendments as soon as they are adopted.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes the Government's report.

For several years it has been noting discrepancies between the national legislation and the Convention on the following matters:

1. the absence of provisions in the legislation respecting the protection of workers' organisations against acts of interference by employers or their organisations, contrary to Article 2 of the Convention;

2. the compulsory registration of collective agreements by the occupational tribunal, which may refuse registration in the event of non-observance of government directives on wages and wage levels, contrary to Article 4 of the Convention (sections 5(1b) and 43(3) and sections 4(4) and 44(3b) of the 1980 Industrial Relations Act).

1. In its previous observations, the Committee noted that the Labour Advisory Board, a tripartite body, had before it an amendment to the legislation intended to give effect to Article 2 of the Convention.

In its current report, the Government indicates that the work of the above Board on this matter has still not been completed, but that no cases of interference covered by Article 2 of the Convention have been brought to the knowledge of the Government.

While noting this statement, the Committee points out that under the terms of the Convention observance of the right set out in Article 2 must be ensured by appropriate measures, that is by legislative means.

The Committee trusts that the legislative process that is under way will be completed in the near future and requests the Government to supply full information on the progress achieved in this respect.

2. The Committee notes that the Government's report contains no information on the point raised concerning the implementation of Article 4 of the Convention.

The Committee therefore refers to its previous comments to the effect that the procedure according to which, before a collective agreement is applied, it is submitted to an industrial tribunal for authorisation, which is given after certifying that it is in conformity with official directives on wages, is a restriction of the right of workers to negotiate freely with their employers their terms and conditions of employment. It once again emphasises that government directives, particularly those concerning wages, should not be imposed upon the social partners but should be accepted voluntarily by all the parties concerned through appropriate procedures.

Consequently, the registration of a collective agreement should only be refused on grounds of form or because the provisions are not in conformity with the minimum standards of the labour legislation.

In this connection, the Committee refers to paragraphs 309, 311 and 313 of its General Survey of 1983.

The Committee requests the Government to supply information on the measures that have been taken or are envisaged to give full effect to this provision of the Convention on this point.