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

Individual Case (CAS) - Discussion: 2016, Publication: 105th ILC session (2016)



A Government representative, the Minister of Labour and Social Security, emphasized the close collaboration her Government had had with the ILO and the social partners since its appearance before the Committee in 2015. She expressed appreciation for the support and technical assistance received from the ILO, in particular in relation to the preparation of regular reports to the ILO and the implementation of the recommendations made by the Conference Committee and the Committee of Experts. She stated that her Government had prioritized implementation of the recommendations, and that the progress report in this regard had been a standing agenda item at the monthly meetings of the National Steering Committee on Social Dialogue. These monthly meetings, together with at least 15 extraordinary meetings held by the National Steering Committee, had resulted in progress on the implementation of the recommendations. Firstly, with regards to the Conference Committee’s request to release unconditionally Mr Thulani Maseko and all other workers imprisoned for having exercised their rights to free speech and expression, she was pleased to report the release of Mr Thulani Maseko in June 2015 after his appeal, heard by the Supreme Court. Further, she categorically stated that there were no workers imprisoned for the abovementioned allegations. Seven cases communicated by the Worker members at the 2015 session of the Conference were investigated and the individuals concerned were found implicated in, charged with, or convicted of, serious criminal activities, including petrol bombing, attempted murder, murder and promoting acts of terrorism with no lawful connection to worker issues. The results of the investigations were contained in the regular Government report of last year and were discussed by a delegation to the ILO in Geneva, in September 2015, and once again with the ILO Pretoria Office, the Southern Africa Trade Union Co-ordination Council (SATUCC) and the International Trade Union Confederation (ITUC) delegation in Swaziland, in February 2016. Secondly, she confirmed that all workers’ and employers’ organizations in the country were fully assured of their freedom of association rights in relation to registration issues, in particular in respect of the registration process of the Amalgamated Trade Union of Swaziland (ATUSWA), without delay. She stated that ATUSWA, the Federation of Swaziland Trade Unions (FESWATU) and other trade unions had been registered. Issues of compliance with the law faced by ATUSWA had been resolved. Furthermore, she provided information regarding the activities of several tripartite structures that involved the full participation of the tripartite partners: the National Steering Committee on Social Dialogue had been held to discuss and review, inter alia, the Public Order Bill, the Suppression of Terrorism (Amendment) Bill, the Public Service Bill, the Correctional Services Bill, as well as the Code of Good Practice on Protest and Industrial Action; the Wages Councils had had several meetings to review terms and conditions of employment for employees in the various sectors of the economy; the Labour Advisory Board had held at least ten meetings and was working with a consultant from the ILO to finalize a new employment bill. The Board considered notices for protest action issued by the Trade Union Congress of Swaziland (TUCOSWA) in terms of section 40 of the Industrial Relations Act (IRA), which resulted in a peaceful demonstration in February 2016. Among the 27 tripartite structures, the following were mentioned: the Training and Localisation Committee; 18 wages councils; the Governing Body of the Conciliation, Mediation and Arbitration Commission (CMAC); the Board of the Swaziland National Provident Fund; the Workmen’s Compensation Medical Board; the Industrial and Vocational Training Board; Pneumoconiosis Medical Board; and the Essential Services Committee. In respect of the Conference Committee’s recommendation to amend section 32 of the Industrial Relations Act to eliminate the discretion of the Commissioner of Labour to register trade unions, she indicated that this matter was discussed in the National Steering Committee on Social Dialogue in February 2016, after a formal submission made by TUCOSWA in November 2015, as well as in May 2016, after which this submission had been referred to the Labour Advisory Board for its consideration. With regard to the recommendation to investigate arbitrary interference by the police in lawful, peaceful and legitimate activities of trade unions, the Government representative indicated that the Ministry of Labour and Social Security had held consultations with the police in this regard and established strong lines of communication to deal with issues as they were reported, aiming to avoid potential conflict. She further mentioned that, while organizations were given autonomy and independence when they participated in lawful, peaceful trade union activities, the police had a duty to maintain law and order, and protect human life and property. In this connection she underlined that the implementation of the Code of Good Practice and Industrial Action had improved the handling of these issues by the police and social partners. For example, a peaceful protest march held by TUCOSWA on 25 February 2016 and May Day Celebrations held by TUCOSWA and FESWATU all took place without incident. The cooperation between the police and social partners had significantly improved, and the Government had further requested technical assistance of the ILO to conduct workshops on the operational aspects of the Code, with an initial workshop to be conducted on 29–30 June 2016. Reiterating the importance of relationship building, on the one hand, and the duty of the police to maintain order and protect public safety, on the other, she pointed out that there had been a high incidence of acts of violence by unions against other workers, employers and police in 2014. This situation had improved in 2015 and 2016, with the exception of a case involving a threat made to the Commissioners of the Conciliation, Mediation and Arbitration Commission by a TUCOSWA affiliate during a strike ballot on 12 May 2016. With regard to the 1963 Public Order Act and the Suppression of Terrorism Act, she stated that the Public Order Bill had been drafted with ILO assistance and in consultation with social partners and other stakeholders. It was tabled before Parliament and was awaiting the conclusion of the legislative process. The Suppression of Terrorism Amendment Bill had been completed in consultation with social partners, addressing three main issues: amending the definition of a “terrorist act”; subjecting the Minister’s decision to determine a specified entity or terrorist organization to judicial review; and ensuring compliance with United Nations resolutions to combat global terrorism. The Bill was a product of consensus by the National Steering Committee on Social Dialogue and was submitted to Parliament. She informed the Committee that the Code of Good Practice was adopted and published as Legal Notice No. 164 of 2015. Furthermore, two bills had been tabled before Parliament: the Public Service Bill, reviewed by the National Steering Committee on Social Dialogue, referred to the Labour Advisory Board and approved by the Cabinet; and the Correctional Services Bill, reviewed by the Labour Advisory Board and approved by the Cabinet.

Finally, she indicated that her Government had accepted ILO technical assistance regarding the legislative reforms and implementation of the recommendations. At the initiative of the Government, a joint mission of the ILO, ITUC and SATUCC had visited the country in February 2016, which had allowed them to obtain information at first-hand on the ground. The Office had prepared a compliance report for four pending bills; the assessment was received on 24 of May 2016. She underlined that rushing the bills without the feedback from the ILO and other stakeholders would have been considered counter-productive, defeating the purpose of amending the legislation in the first place. The Government representative concluded her speech by expressing her appreciation to the ILO and the social partners who worked with the Government in an effective tripartite alliance to achieve the progress made. She also thanked the Africa group, the Southern African Development Community (SADC) – Employment and Labour Sector and Private Sector Forum – and SATUCC.

The Employer members recalled that this case had been discussed last year, and that the Conference Committee had then formulated several recommendations to the Government. They noted with satisfaction that the Government had acted upon the first recommendation by releasing Mr Thulani Maseko, TUCOSWA’s lawyer. They further noted the positive developments with regard to the registration of unions, and urged the Government to provide information on the steps taken to register ATUSWA, as requested by the Conference Committee in June 2015. They welcomed the concrete measures implemented by the Government in respect of the legislative issues previously raised, including the publication of the Public Service Bill in the Gazette, and the production, through social dialogue and with the assistance of the Office, of a draft bill of the Public Order Act. They noted the Government’s information on the steps taken to prevent arbitrary interference by the police, and to implement the Code of Good Practice for protests and industrial action, which had resulted in the improved handling of protests. The peaceful observance of May Day by trade unions this year, for instance, demonstrated an improved relationship between the police and workers’ groups. In concluding, they affirmed that the Government had made genuine efforts to improve the application of the Convention. Noting nevertheless that work remained to fully implement all of the recommendations, they encouraged the Government to continue in its efforts, and to continue engaging the social partners and seeking the assistance of the Office in doing so.

The Worker members stressed that this was the seventh consecutive time that this case was discussed in the Conference Committee. In total, the country had been examined 14 times with respect to the Convention, and had been placed in a special paragraph four times in recent years (2009, 2010, 2011 and 2015). The ILO had also conducted two high-level missions to the country in the previous six years, the last of which, in 2014, recorded that no progress had been achieved within the past decade. In spite of the technical assistance the ILO had provided for the reform of the repressive legal framework, within the framework of the Universal Periodic Review by the United Nations Human Rights Council concerning Swaziland in 2016, it had been submitted that no significant progress had been achieved in the area of freedom of association since 2011. They recalled that a technical report requested by the 2010 ILO high-level mission had criticized the fact that the police had applied the Suppression of Terrorism Act, in a manner that restricted peaceful and legitimate trade union activities. The definition of “terrorist act” was very broad and could include conduct that was non-violent or considered to be driven by an intent to incite fear. Article 2(1) of the Act defined a terrorist act as “an act or omission which constitutes an offence under this Act or within the scope of a counter terrorism convention.” Article 5(3)(b) of the Suppression of Terrorism Act provided that “any person who intentionally or without lawful excuse sends or communicates to another person or institution a false alarm or by any deed causes a false alarm or unwarranted panic” was guilty of an offence and upon conviction liable to serve a term in prison not exceeding three years or a fine imposed by a court. The Government had agreed to amend this Act in the discussion of this case in 2013, yet to date no amendments had been undertaken. Equally the Government had taken no action, for some 20 years, to amend the King’s Proclamation of 1973. The same applied to the Public Order Act, in respect of which the Committee of Experts had been requesting amendments since 1998. The Public Order Act entitled public authorities “to control public gatherings”, and to “give such orders as they may consider necessary or expedient”, which was found to have been used to repress lawful and peaceful trade union activities. They recalled that workers in Swaziland who engaged in peaceful, lawful and legitimate trade union activities were constantly subjected to police intimidation and violence, leading to severe injuries in some instances. The police justified their interference on grounds laid down in the Urban Act, under which unions were required to request a non-objection certificate from the police, two weeks prior to protests planned in urban areas where workplaces with union representation were located. Mr Mcolisi Ngcamphalala, member of the Swaziland National Association of Teachers (SNAT) and Mr Mbongwa Dlamini, Manzini Regional Chairperson of SNAT, were arrested in February 2016 and charged with obstruction for having participated in a protest action called by the public sector unions to demand the publication of a report on the public sector pay review. Their homes were also raided on 4 February 2016 by Swaziland’s serious crimes unit, also known as the Swazi anti-terrorism squad. They were then held in custody before being granted bail of SZL1,000 (US$60) each, pending trial. They deplored that, to date, no police officer had been subjected to disciplinary procedures for having intimidated workers or having used disproportionate violence. Mr Muzi Mhlanga (second deputy of the General Secretary of TUCOSWA and SNAT General Secretary) had filed a demand for compensation as a result of a police beating in February 2015, when he refused to hand over his phone to the police who had intervened in an internal trade union meeting. They stated that the wide discretion afforded to the Commissioner of Labour to register trade unions under section 32 of the Industrial Relations Act continued to constitute a hindrance for workers in applying the right to establish trade unions. In this regard they added that the Government had no reason to congratulate itself for the recent registration of TUCOSWA and ATUSWA, as these cases in fact demonstrated the arbitrary and inconsistent procedures of the registration of trade unions. When TUCOSWA was de-registered in April 2012, and denied registration for another three years, the Government had justified this decision before the Conference Committee on the ground of a “lacuna” existing in the Industrial Relations Act. However, Swazi members of Parliament who spoke before the European Parliament in September 2015 had stated that TUCOSWA had been de-registered for demanding multiparty elections, and for having links with the political party People’s United Democratic Movement (PUDEMO). In the case of ATUSWA’s application for registration, in September 2013, the Commissioner of Labour had placed numerous requirements which went beyond the statutory requirements and what was requested from other unions for their registration. For example, ATUSWA was required to delete the term “amalgamated” in the union’s name and to provide letters from the employers of the founding members of the trade union to prove their employment. While welcoming the registration of ATUSWA and TUCOSWA, they expressed concern at the lengthy registration procedures, which constituted a serious obstacle to the establishment of trade union organizations. Moreover, the contradictory statements by high-level officials made it clear that the Government abused the wide discretion afforded by the Industrial Relations Act by using arbitrary and unclear criteria for trade union registration. They observed that, in July 2015, both Mr Thulani Maseko, TUCOSWA’s lawyer, and Mr Bheki Makhubu were released, but only after having completed their entire sentences. Mr Mario Masuku, President of PUDEMO, and Mr Maxwell Dlamini, Secretary-General of the Swaziland Youth Congress, had been arrested and charged under the Suppression of Terrorism Act, after delivering a speech during the 2014 May Day celebrations organized by TUCOSWA. While they had been released on bail, they continued to face criminal charges and were maybe facing up to 15 years of hard labour. Both activists attended the TUCOSWA congress in 2016, yet were not permitted to address the workers due to their bail conditions. It was troubling therefore that these limitations remained on the exercise of free speech, which was a sine qua non for the right to freedom of association, and that heavy criminal charges continued to be employed to suppress debates during workers’ assemblies. They called for concrete legal changes to be urgently adopted so as to prevent future serious violations of freedom of association. It did not suffice to merely provide reassurances, as the Government had done, that bills had been tabled before Parliament.

The Employer member of Swaziland stressed that it was important to commend the social partners for the dedication they had demonstrated in working to improve the country’s compliance with the Convention. A new era, characterized by robust social dialogue and a shared commitment to producing tangible results, had emerged in the last 12 months. This was demonstrated by the fact that the Minister of Labour and Social Welfare had undertaken two missions, to the ILO in Geneva and to the ILO Regional Office for Africa, respectively, in order to gain a deeper understanding of the challenges. The Minister subsequently reported back to the social partners, thus enabling them to gain a better understanding of the actions the country needed to give priority to. The acceptance of the ILO tripartite high-level mission to the country in February 2016 represented further proof of the partners’ shared dedication to making progress on the application of the Convention. With regard to the Code of Good Practice on protests and industrial action, he noted that the Code was being successfully implemented, as several trade union events had been held in 2016 without interference from the authorities. Despite this progress, extensive awareness-raising activities remained necessary, for both security forces and workers’ groups to ensure a thorough shift in mindset and behaviour with respect to the holding of protests. In respect of the four pending bills, he emphasized the involvement of the social partners in the legislative process. In particular, public inputs to the revision of the Suppression of Terrorism Act were being made through the Parliamentary Portfolio Committee. He underlined in this regard the importance of the ILO input received by the social partners on 20 May 2016. Parliament would continue giving the Bill the priority and urgency it deserved, ultimately enabling compliance with the Convention. He recognized that sound and comprehensive amendments to the Suppression of Terrorism Act and the Public Order Act would enable potential consideration of Swaziland for re-admission to the African Growth and Opportunity Act (AGOA) benefits, driving job creation in the country. In this regard, he committed to continuing to actively participate in the tripartite forums and lobby Parliamentary Portfolio Committees towards finalizing and passing the bills concerned. Regarding the amendment of section 32 of the Industrial Relations Act to eliminate the discretion of the Commissioner of Labour to register trade unions, he indicated that this matter was pending before the National Steering Committee on Social Dialogue and the Labour Advisory Board for due deliberation. Furthermore, the employers had raised a point of principle on the issue of registering ATUSWA during the ILO high-level mission in February 2016. The registration of worker and employer entities should be based on a certain set of requirements in line with defined practice and principle. If requirements were met, entities should have been registered. He was convinced that the Government’s attitude had genuinely changed, as demonstrated by the abovementioned activities and the results achieved. The social partners were therefore encouraged to fully utilize all national social dialogue forums available to them to ensure that ILO procedures were availed of only as a last resort. Underscoring the employers’ desire for an environment conducive to job creation and economic growth, he emphasized that such an environment could only be realized by a high degree of collaboration among the social partners. In this respect he urged that the positive gains achieved so far with respect to social dialogue continue to be built upon, so that dialogue could be used as a means for not only addressing issues of compliance with international obligations but also serve as a platform for addressing such issues as working conditions, poverty eradication and job creation.

The Worker member of Swaziland recalled that this case had been discussed by the Committee on no less than 15 occasions, including the present one, which clearly attested to the seriousness and the persistence of the issues respecting freedom of association. On the issue of police harassment and brutality, he pointed out that although two events had indeed been organized by workers without police interference, this did not mean there had been no reported cases of interference by the police in workers’ activities in 2015. Several instances of police interference had, in fact, occurred, including the following: (1) in February 2016, a TUCOSWA march to deliver a petition to Parliament was blocked, pushed to a distance of 2 kilometres away from Parliament and eventually dispersed; (2) in February 2016, TUCOSWA was also prevented from staging a protest march, on grounds that the King was hunting wild game in this period; (3) in April 2016, the police twice invaded the offices of the Swaziland Union of Financial Institutions and Allied Workers (SUFIAWU) in an attempt to dissuade the latter from continuing with a planned strike, and also prevented SUFIAWU’s General Secretary from supporting a protected strike by the Swaziland Development Finance Corporation (FINCORP) employees; (4) in April 2016, the Commissioner of Police issued a statement that the police should treat trade unionists as a “shishi” (a type of animal considered as vermin) and kill them upon sight; and (5) in June 2016, a trade unionist, Gladys Dlamini, was badly injured by the police and almost lost an eye. In addition to these violations, two trade unionists – Mr Mario Masuku and Mr Maxwell Dlamini – were prevented from speaking at the 2016 May Day rally after having been arrested at the 2015 event. The Government continued to report, year in and year out, on various measures that fell short of actually implementing the changes requested by the Committee, such as tabling bills before Parliament. He urged the Government to ensure that the bills referred to by the Government, particularly those concerning the Public Order Act and the Suppression of Terrorism Act, be passed by July 2016, and that the entirety of the other recommendations issued by the Committee be implemented without further delay.

The Government member of Botswana, speaking on behalf of the member States of the Southern African Development Community (SADC), stated that the Government briefed the member States and social partners of the SADC at their tripartite meetings on 12 May and 1 June 2016 on progress made with regard to the implementation of the Convention. He noted with satisfaction the significant progress made by the Government in addressing the issues to comply with the Convention, and noted in particular, the tabling in Parliament of amendments that had been brought to the legislation. Numerous achievements were made in order to create a conducive environment for effective social dialogue, which was evidenced by the fact that tripartite social dialogue structures were operational. He also noted that the problems related to the registration of federations of trade unions had been resolved and ATUSWA, as well as FESWATU, had been registered. Recalling that there were outstanding issues that needed to be addressed, in particular the need for Parliament to pass various bills in an expeditious way, he expressed confidence in the Government’s commitment to address those rapidly. He stated that the SADC encouraged the sharing of lessons and experiences by member States, and regularly reviewed and monitored the implementation of regional instruments such as the SADC Protocol on Employment and Labour, 2014, and the SADC Decent Work Programme 2013–19, which prioritized compliance with international labour standards. He therefore encouraged and supported the efforts of the Government and social partners to address the outstanding issues to ensure full compliance with the Convention, and urged all stakeholders in Swaziland to work together in this regard. Finally, he commended the ILO for its technical support to the Government and social partners to address these issues.

The Government member of the Netherlands, speaking on behalf of member States of the European Union, indicated that Albania, Iceland, Norway, the member States of the European Economic Area, as well as the Republic of Moldova and Georgia aligned themselves to this statement. He emphasized that the promotion of the universal ratification and implementation of core labour standards, including this Convention, was part of the European Union Action Plan on Human Rights adopted in 2015, including the protection of human rights defenders including social partners. He recalled the commitment that had been made by the Government under the Cotonou Agreement – the framework for Swaziland’s cooperation with the European Union – to respect democracy, the rule of law and human rights principles, which included freedom of association. The European Parliament Resolution of 21 May 2015 (2015/2712(RSP)) had called on the Government to take concrete measures to respect and promote human rights in the country. In that respect, he emphasized that they had engaged in a constructive dialogue with the Government and non-state actors and were monitoring the progress achieved. Noting that this case had been discussed a number of times at the Committee, he was pleased to acknowledge a number of positive steps taken by the Government since June 2015. He welcomed the unconditional release, soon after the Committee’s discussion, of Mr Thulani Maseko, and welcomed the registration of the FESWATU in June 2015 and, recently, of the ATUSWA. He also acknowledged progress on legislative and administrative matters with ILO assistance, and strongly encouraged the Government to complete its legislative reform, including the amendment of the Suppression of Terrorism Act in consultation with social partners, in order to bring its legislation into compliance with international standards. He expressed the hope that all outstanding issues would be addressed promptly, so as to ensure full compliance with the Convention. He reiterated his readiness to cooperate with the Government and the people of Swaziland to promote development, including the full enjoyment of all human rights in the country.

The Worker member of Zimbabwe, speaking on behalf of the Southern African Trade Union Co-ordination Council (SATUCC), recalled that in 2015 the Committee had requested that its recommendations be implemented in full consultation and collaboration with the social partners. In spite of this, the Government had in fact continued to undermine TUCOSWA in its attempts to exercise its trade union rights. Social dialogue, moreover, continued to be conducted in an environment that in all respects remained hostile to trade unions. Such hostility was evident by statements made by the police, to the effect that trade unions were monsters that needed to be crushed, and the fact that the trade unionists, Mr Mario Masuku and Mr Maxwell Dlamini, had been arrested and subjected to grossly unfair conditions of bail. He stated that the delayed and difficult process TUCOSWA had experienced in getting itself registered attested to the Government’s lack of true commitment to social dialogue. Indeed, social dialogue at the national level was not consciously and genuinely cultivated. This lack of commitment was further demonstrated by the Government’s usual pre-Conference mounting of largely formal measures that were intended to convey the illusion of enacting real changes. He concluded by stressing the importance of ensuring social dialogue not only at the national level, but at all levels, including within enterprises. The national situation, in which employers and the Government created and promoted sweetheart unions, was detrimental to the growth of genuine, representative unions, and thus detrimental to the realization of genuine social dialogue.

The Employer member of Zimbabwe supported the statement made by the Employer spokesperson regarding the exhaustive examples of advancements demonstrated by Swaziland. He congratulated the Government on the progress made and acknowledged the need for additional efforts. The report submitted by the Government confirmed that the ILO missions were not being wane in terms of willingness of the counterparts to comply with the ratified ILO standards. The Government should be encouraged further to pass the pending Bills without further delay. The registration of trade unions should be based on the standardized procedures, in line with the Convention. In case the requirements were not to be met, the registration should not be possible. The Government should fully utilize social dialogue, and address to the ILO forum as the last resort.

The Worker member of the United States deplored the lack of progress in the present case. In keeping with its strategy of years past, the Government had once again taken only measures of a superficial nature, by proposing amendments to the laws with no intention of passing the said amendments, much less implementing them. These proposed amendments, furthermore, were still not in conformity with the Convention. Also of particular concern was the failure of the proposed amendments to comply with the requirements of the AGOA – specifically the eligibility benchmarks contained therein which required full guarantees of the exercise of freedom of association. This failure to enact the necessary legislation resulted in the continued denial, to Swaziland, of preferential access to the US market under the AGOA, to the detriment of the nation and particularly the nation’s workers. With regards to section 2 of the Suppression of Terrorism Act, she stated that while the Government’s proposal to include the words “by violent means” was a welcome one, further amendments were necessary to clarify the definition of terrorism; definitions of “lawful activities” and “lawful organizations” were also needed. She also noted with concern that the overly broad definition of a terrorist group could serve as a means of suppressing trade union activity. She underscored that dangerous ambiguities also existed in the Government’s proposed amendments to the Public Order Act. The ground on which meetings and gatherings could be prohibited were vague and overly broad, which was tantamount to giving the authorities virtually complete discretion to quash any union gathering. The penalties for violations of the Act, including even minor offences were overly harsh. For instance, failure to provide seven days’ notice for a public meeting was punishable by a fine and a one-year term of imprisonment. She concluded by urging the Government to immediately enact the amendments necessary for bringing the legislation into conformity with the Convention.

The Government member of South Africa fully endorsed the statement made on behalf of the SADC by the Government member of Botswana and highlighted the positive spirit of the social partners in the region, the SADC Private Sector Forum, and the enthusiasm and role played by the SATUCC and ITUC, which remained critical in the positive developments and notable progress in Swaziland. Acknowledging the challenges the country had faced with regard to compliance with the Convention, the speaker observed that in 2015, the authorities had faced their situation with renewed vigour and commitment, as evidenced by the amendment of the Industrial Relations Act to facilitate the registration of employers’ and workers’ federations. These registrations had led to the reconstitution of all tripartite social dialogue structures and had given a voice to the social partners. The speaker thanked the ILO for the technical assistance it had provided to Swaziland with regard to the legislative reform process, and in particular its support in the amendment of the Public Order Act. The assessment of the compliance of the amendments with the international labour standards was a crucial step in ensuring that the said amendments effectively addressed the shortfalls and gaps in the legislation. Following a recommendation of the ILO, ITUC and SATUCC during a February 2016 mission, the authorities had also submitted the Suppression of Terrorism Act to the social dialogue structures for review and discussion. In the framework of the SADC, the speaker supported and encouraged Swaziland to continue its collaborative efforts. This tripartite position was a testimony of the new spirit of cooperation in Swaziland in pursuit of decent work and respect for fundamental principles and rights at work. The Committee was urged to provide assistance to the country by letting it complete the legislative reform work it had begun without the onerous burden of being included in the special paragraph.

The Worker member of Senegal, speaking on behalf of the members of the Organization of Trade Unions of West Africa (OTUWA), expressed regret about the lack of progress made in this case. Since 2012, the Government had failed to report on the progress made concerning the final adoption of the Public Service Bill and its alignment with the provisions of the Convention relating to public service trade unionists. TUCOSWA was still waiting for Parliament to hold consultations with the general public and stakeholders, as was the usual procedure. Swaziland’s trade partners had expressed their concern regarding certain provisions of the Bill. He condemned the violation of the rights of public servants, as established in the labour legislation and the Constitution, in relation to freedom of association, a violation which contravened the ILO Conventions. TUCOSWA and its public service affiliates had written to several institutions, including Parliament, to request a hearing, but had been unsuccessful. Despite the fact that the Government was attempting to present regressive measures as signs of progress, particularly with respect to the procedure to adopt the Public Service Bill, the Committee should reaffirm its position regarding what genuinely constituted compliance with the provisions of the Convention.

An observer representing the International Transport Workers’ Federation (ITF), while welcoming the early release of Mr Thulani Maseko, indicated that this could not be seen as a real sign of progress: although Mr Maseko had been released unconditionally, he still faced sedition charges for a May Day speech he gave in 2009. Mr Mario Masuku, President of the pro-democracy PUDEMO and Mr Maxwell Dlamini of the Swaziland Youth Congress (SWAYOCO), were arrested during a May Day event in 2014. They were charged, under the Suppression of Terrorism Act, with singing a seditious song and pronouncing seditious statements. The State argued in Court that their statements were serious and threatened the leadership of Swaziland. They were denied bail on two occasions before the Supreme Court finally released them on bail on 14 July 2015. Not only did they suffer from very unfair treatment with regard to the bail conditions, but they were also completely barred from speaking in public. In 2013, leaders of the Swaziland Transport and Allied Workers’ Union were served with notice of prosecution under the Road Traffic Act of 2007 for holding a union gathering in a private car park. Three years later, the charges against them were still pending. In 2014, Mr Sfiso Mabuza, the Chairperson of a local branch of TUCOSWA, was arrested and detained for possession of PUDEMO documents. Despite being released after five days’ detention, he was subjected to unfair bail conditions. In general, trade union meetings were stopped when they included an item in the agenda concerning democracy. Respect of the civil liberties of trade unionists still remained a major problem in Swaziland. The Convention protected the civil liberties of trade unionists. The common understanding that freedom of association was wholly ineffective without the protection of trade unionists’ fundamental civil liberties was enshrined in a resolution of the International Labour Conference in 1970. In this regard, the Committee of Experts had commented that freedom of association was a principle with implications that went well beyond the mere framework of labour law. In the absence of a democratic system in which fundamental rights and civil liberties were respected, freedom of association could not be fully developed. The speaker indicated that the fundamental rights necessary for the exercise of freedom of association included the right to freedom and security of a person, to freedom from arbitrary arrest and detention, to freedom of opinion and expression and, in particular, to freedom to hold opinions without interference, as well as the right to a fair trial by an independent and impartial tribunal. The use of sedition, terrorism, and even road traffic laws to silence free speech struck at the heart of freedom of association. Swaziland would not be in compliance with the Convention until it could guarantee that trade union rights were exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure, fear and threats. In addition to the legislative amendments requested by the Committee of Experts, it was necessary to repeal the Sedition and Subversive Activities Act and replace it with legislation that was respectful of democratic rights. The Government was also encouraged to take on board the comprehensive comments of the International Commission of Jurists regarding judicial independence and impartiality.

The Government member of Namibia indicated that his Government aligned itself with the statement made by the Government member of Botswana on behalf of the SADC and welcomed the legislative reform and other ongoing initiatives and efforts made by the Government in this regard. He also considered that the release of Mr Thulani Maseko had demonstrated the independence of the country’s judicial system. The speaker applauded the Government for ensuring that May Day celebrations could take place without police interference and called upon the ILO to continue to provide technical assistance to ensure that once adopted, the bills debated in Parliament could be fully implemented by the Government.

The Worker member of the United Kingdom drew attention to the violent repression of trade union and human rights, including mistreatment and deaths in custody. Mr Thulani Maseko, who was released shortly after the 2015 discussion in the Committee, had suffered three weeks of solitary confinement during his imprisonment. The speaker referred to an attack by the police which had just taken place in Malkerns, against a group of workers who were waiting for a confirmation to proceed with a lawful strike. This resulted in workers being seriously injured. The Government’s aversion towards trade unions had been discussed several times in the past. The recent adverse statement against trade unions and collective bargaining in public services by the National Police Commissioner clearly indicated the hostile disposition of the Government towards trade unions and of late, its clandestine manoeuvres to cloud the industrial relations sphere with “sweetheart” trade unions in an effort to sideline genuine workers’ organizations. The Government had continued to act with disregard of rights under the Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The speaker hoped that, with the continued scrutiny of the Committee of Experts and of the Conference Committee, reforms could be brought about for the people and workers of the country who had the right to live, free from repression, attacks and violence from those who should in fact be protecting them.

The Worker member of South Africa referred to active and consistent engagement with TUCOSWA. Swaziland had appeared before the Committee since 1996 in relation to this Convention and Convention No. 98, which were fundamental to the architecture of international labour standards and to the dignity of workers in general. As indicated by the SATUCC at its 28 March 2016 labour symposium in Botswana, it was a struggle for workers and their civil rights to freely organize, associate and bargain without fear and interference. There could be no separation between the rights of workers at the workplace and in their communities, including freely expressing themselves as part of civil society and as human beings. The speaker also noted the report of the Minister regarding the 2015 conclusions of the Committee in this case and aligned himself with TUCOSWA concerning the progress in this regard. However, progress within the legislative framework, aimed at changing the problematic conditions, still needed to be confirmed in practice. The environment of hostility against civil society and other social forces, which related directly or indirectly to workers’ rights, persisted and was characterized by the militarized political climate in the country. The relationship between labour and civil rights could not be subject to a false dichotomy, as they were interdependent and one directly shaped or affected the other. Within the SATUCC and the rest of the international progressive trade union movement, it was clear that the Convention concerned the rights of workers both as workers and as human beings. The speaker considered that the governments and employers of the SADC needed to honestly and consistently join the workers in their endeavour to free the region from workers’ rights’ violations. He assured that the workers and their sister unions would remain committed to defending workers’ rights and democracy.

The Government member of the United Republic of Tanzania noted that the Government had implemented most of the recommendations of the Committee on this case and welcomed its efforts to protect and promote labour rights. Noting with appreciation the Government’s cooperation with the ILO, including through a joint mission in 2016, she encouraged it to continue such cooperation in order to address all outstanding issues. The amendments to the Public Order Act and the Suppression of Terrorism Act had been drafted in consultation with the social partners and with the assistance of the ILO. The Government’s commitment to continue promoting the relationship between the police force and workers, in addressing matters of common concern, was commendable. The Government was encouraged to implement the pending recommendations, as well as to keep up the momentum generated on the protection of labour rights, with the support of the ILO.

The Government member of Zimbabwe indicated that his Government aligned itself with the statement made by the Government member of Botswana on behalf of the SADC member States. Tremendous progress had been made by the Government in addressing the concerns raised by the Committee of Experts. In this regard, the Government had worked with the social partners and was committed to continue this collaboration, in its efforts to address the challenges within the labour market. He commended the Government for the bold steps taken to revise the Public Order Act, the Suppression of Terrorism Act and the Public Service Act in order to bring them into conformity with the Convention, while ensuring tripartism. He urged the ILO to continue to provide technical assistance to address the concerns expressed by the Committee of Experts.

The Government member of Kenya welcomed the information provided by the Government and noted that all of the pending issues had been addressed in some way. There had been significant progress and commitment by the Government with regard to addressing and finalizing the outstanding issues, including the urgent submission to Parliament of the bills to amend the Public Order Act and the Suppression of Terrorism Act. A Code of Good Practice on protests, which was fully operational, had been completed through tripartite participation. The Public Service Bill and the Correctional Services Bill, which had been developed through technical cooperation, were before Parliament, and comments from the ILO had been received on 24 May 2016. The speaker called upon the ILO to continue supporting the country with regard to the consolidation of the progress made and to the continuous improvement of industrial relations in the country.

The Government representative reiterated that the progress made so far was based upon the recommendations made by the Committee in June 2015. This progress had not been achieved singlehandedly by the Government, but had been made with the employer and worker federations and other social partners. Above all, the amendments made to the legislation were a result of tripartite consultations and the agreement of other stakeholders. In addition to its assistance in the drafting of the legislation, the ILO had made comments on the bills, which would be taken into consideration. Once the bills had been adopted, they would represent the spirit and nature of a free and harmonious industrial relations environment. With regard to the issues raised by the social partners, she indicated that the country was moving forward with what it had been urged to do. Regarding the anti-union statements made by the National Commissioner of Police, she clarified that they were made in a private meeting and that the Commissioner had apologized to the nation. Concerning the violence by police against workers in Malkerns, she stated that the information was misguided and that the workers who were exercising their right to strike had been pushing those who wished to work to go on strike. In fact, previously the police had come to rescue the officials of the Conciliation, Mediation and Arbitration Commission who had been held hostage by workers. The official report on the incident was still pending. She thanked the ILO for its patience in addressing the issues raised before the Committee and assured that the remaining legislative issues which were pending before Parliament would be finalized in the near future. The Government was committed to fulfilling all of its obligations under the Convention. She thanked the Committee and the social partners, particularly the governments, who had noted the progress made in the country and assured them that it would continue to make progress, as had been demonstrated in the last six months.

The Worker members recalled that the persistent lack of progress had led the Committee to place Swaziland under a special paragraph in 2015. They regretted that the Government had not addressed the issues adequately and therefore had to once again bring up the same issues. The 2015 conclusions had called for the amendment of section 32 of the Industrial Relations Act in order to ensure that trade unions could be registered without previous authorization. However, this section remained unaltered, despite several letters petitioning the Ministry of Labour to discuss the compliance of the Industrial Relations Act with the Convention. Mr Thulani Maseko and Mr Bheki Makhubu, who were released only two weeks before completing their entire prison sentences, were not awarded any compensation for their arbitrary detention. Contrary to the conclusions of 2015, which called for the unconditional release of all workers imprisoned for the exercise of their trade union rights, Mr Mario Masuku and Mr Maxwell Dlamini were not released unconditionally and continued to be deprived of their right to free speech. In addition, the Government had arrested and charged two more workers. Depriving workers of their liberty for exercising their rights was not only a serious violation under the Convention but also had an intimidating impact on all workers. They reiterated their call for the Government to cease imposing criminal sanctions for legitimate and peaceful trade union activities. It was extremely disappointing that not a single police officer had been held accountable for their arbitrary interference in lawful, peaceful and legitimate trade union activities. Hence, the police interference in trade union activities continued unabated. Although the ILO had provided technical assistance six months ago to bring the Suppression of Terrorism Act and the Public Order Act in line with the Convention, the Government had not yet finalized this legislation. The Correctional Services Bill had not yet been passed and would not, in any case, allow prison staff to establish and join independent trade unions. They would instead be allowed to join staff associations consisting of managers and workers. Workers would be able to benefit from the rights enshrined in the Convention only if it was effectively applied in practice. In order to fulfil the promises made before the Committee and to bring about genuine changes, the Government should stop treating trade unionists as criminals and engage in dialogue with them to bring the country on a path to real reform. The speaker called on the Government to accept technical assistance from the ILO and a direct contacts mission in order to meet all its promises, before the next session of the Conference.

The Employer members recalled that the conclusions of the Committee on this case in 2015 included nine points and were included in a special paragraph of the report. Since then, concrete steps had been taken by the Government to comply with these recommendations. In this regard, the employer members welcomed: (1) the release of Mr Maseko; (2) the progress achieved with respect to freedom of association of employers’ and workers’ organizations, especially with regard to the registration of FESWATU and ATUSWA; (3) the progress made regarding the participation of social partners in a number of tripartite committees; and (4) the steps taken towards building more positive relationships between the police and the social partners, specifically in respect to peaceful protests. With regard to the legislative measures, while noting the steps taken by the Government, they encouraged it to continue its progress, in consultation with the social partners and with the technical assistance of the ILO. The discussion on whether such a legislative process could lead to concrete results was a good opportunity to remind the Government to continue to build upon the progress made in order to ensure real and meaningful results in relation to the legislative review, thus ensuring compliance with national legislation and the Convention. While noting the constructive spirit of the Government, this case had been a long-standing concern of both this Committee and the Committee of Experts. Therefore the Government was encouraged to step up its efforts, which would be carefully monitored.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed on issues raised by the Committee of Experts.

The Committee noted with interest the recent registration of workers’ and employers’ organizations and the Government`s statement that these organizations are now represented in all tripartite structures. The Committee nevertheless expressed concern that legislative matters which have been the subject of previous discussion before this Committee have still not yet been addressed.

Taking into account the discussion of the case, the Committee requested the Government to:

• ■ continue to hold meaningful consultations with social partners in order to bring the Suppression of Terrorism Act and the Public Order Act in line with Convention No. 87;
• ■ continue to conduct investigations into interference and intimidation of trade unionists during legitimate and peaceful trade union activities and hold those responsible for violations accountable;
• ■ amend the Correctional Services (Prison) Bill to ensure that prison staff have the right to establish and join independent trade unions, in consultation with the social partners;
• ■ ensure that freedom of association can be exercised in a climate free of intimidation and without violence against workers, trade unions or employers and act accordingly.
• ■ amend section 32 of the Industrial Relations Act to eliminate the discretion of the Commissioner of Labour to register trade unions.

The Committee urged the Government to complete the legislative processes without further delay. The Government is encouraged to avail itself of ILO technical assistance in this regard, as well as to accept a direct contacts mission to the country in order to assess the progress made before the next International Labour Conference.

The Government representative thanked the Committee for the conclusions and assured the Committee that the Government would continue work with the social partners and would attend to the remaining commitments.

Individual Case (CAS) - Discussion: 2015, Publication: 104th ILC session (2015)



The Government provided the following written information.

There has been remarkable progress in dealing with the issues raised by the ILO in the 2015 report of the Committee of Experts. The progress on the issues is as set out below. Concerning the amendment of the Industrial Relations Act to allow for registration of federations, that amendment has been effected through the Industrial Relations (Amendment) Act No. 11 of 2014 and is now law. Following the enactment of the amendment, the Trade Union Congress of Swaziland (TUCOSWA), the Federation of Swaziland Employers and Chamber of Commerce (FSE–CC), and the Federation of the Swaziland Business Community (FESBC) are now duly registered. The ushering in of the amendment has created an interest from other labour market formations to form federations, hence some requested to attend the 104th Session of the Conference as observers. The Government is fully committed to ensuring the full operationalization of all tripartite structures. It is in this regard therefore that, immediately following their registration, we have held a tripartite consultation meeting with the federations where the agenda of the 104th Session of the ILC and other issues were discussed. The Ministry of Labour and Social Security has also invited the federations to nominate members to serve on all statutory boards.

Concerning the amendment of the Industrial Relations Act to ensure that criminal and civil liability penalties do not impair the right to freedom of association (sections 40(13) and 97), this issue has been dealt with in the Industrial Relations (Amendment) Act No. 11 of 2014 by amending the Act to ensure that civil and criminal penalties do not impair the right to freedom of association. In addition, in consultation with the ILO and following a review by the social partners and other stakeholders in July 2014, the Code of Good Practice was sent to the Attorney General for further review. At the meeting between the Government and the social partners, soon after their registration, the revised Code was circulated and now awaits comments from the social partners before the end of July 2015. The Ministry will be following up on the offer from the ILO to provide training to the police, workers, employers and other stakeholders on the application of the Code. Furthermore, following consultations between the Government and the ILO, a consultant has been selected to undertake a review of the Public Order Act, and we are working with the ILO to ensure that the consultant starts working in July 2015. The draft amendment to the Suppression of Terrorism Act has been referred back to Cabinet to ensure that the amendments will not compromise law and order. The revised bill will be presented to Parliament shortly. Moreover, following recommendations from the Essential Services Committee, sanitary services have been removed from the list of essential services from the Industrial Relations Act, meaning that the Government has responded fully to the ILO request (Legal Notice No. 149 of 2014). With respect to the Public Service Bill, this Bill was finalized, presented and received Cabinet’s approval and will be published and presented to Parliament for debate.

Concerning the Correctional Services (Prison) Bill to allow for the right to organize for correctional services staff, as submitted in the Government report in November, 2014, the Labour Advisory Board reviewed the draft bill. It has now been reviewed by Cabinet and referred back to the Minister for Justice and Constitutional Affairs for action. This is a substantial piece of legislation as it addresses other issues, beyond the right to organize of correctional services staff. Therefore, other consultative meetings are still ongoing. Lastly, as previously stated in reports to the ILO, the application for the registration of the Amalgamated Trade Union of Swaziland (ATUSWA) was defective. At the meeting with some of the founding members of ATUSWA, they conceded that their application was defective, and they have submitted a fresh application which is being reviewed. In addition to the legislative amendments, the Government wishes to address other issues, which have been referred to the Government, through various structures of the ILO. The issues include the following: (a) Thulani Maseko: Mr Maseko was charged and convicted of contempt of court after publishing an article which constituted a scurrilous attack on the judiciary, calculated to undermine the rule of law in Swaziland. Mr Maseko elected to continue his attack on the judiciary throughout his trial, and this had a bearing on his sentence. The judgment in this case will be made available to the relevant ILO supervisory structures. (b) Respect for the law: The Government has faced a total disregard for the laws of our country, provocation and violent assaults against police officers and fellow employees by the workers’ federation, its affiliates and their members. This has resulted in conflict between the police and the federation, its affiliates and their members.

In addition, the Government provided some examples of the acts of violence against the police, as well as other acts of violence and intimidation against fellow employees: (i) On 30 June 2014, two police officers, namely Constable Sihle Zwane and Hlengiwe Shabangu were assaulted with stones and had to be taken to hospital for treatment for injuries they sustained. This was during a strike action by the Swaziland Agricultural Plantations and Allied Workers Union. (ii) On 24 June 2014, during a strike action by the Swaziland Agricultural Plantations and Allied Workers Union, the Deputy National Commissioner of Police was held hostage by workers who would not let him out of his motor vehicle, while they also blocked police officers who intended to assist him. (iii) On 20 June 2014, fellow workers, who were exercising their right not to take part in a strike action, were poisoned (their tea was administered with poison). The employees are still under treatment. These and other allegations are set out more fully in our letter to the ILO dated 24 November 2014.

The Industrial Relations Act provides the unions and federations with the right to engage on issues of public policy and public administration. However, the extent to which they may engage in such issues does not cover issues which are of a purely political nature (including advocating for regime change through violent means). Increasingly, the activities of the workers’ federation are being overwhelmed by a political agenda at the expense of its core and primary mandate, which is the advance of socio-economic interests of workers. To some extent, this has been responsible for the tension between the police and the workers’ federation and its affiliates. We request the ILO to pass the message that freedom of association does not translate into lawlessness. It carries with it certain obligations for the maintenance of an orderly society. Tangible progress has been made on the issues referred to the Government by the Committee of Experts. The Government thanks the Office of the ILO for the ongoing advice and assistance received, in particular from the Pretoria Office and requests its continued support to ensure that all parties exercise their rights with respect for the law. The Government thanks the federations for their cooperation (where they did), for making all the work mentioned above a reality and encourages the social partners to strive to ensure the spirit of tripartism, partnership and cooperation, which must forever prevail for the socio-economic development of the country. The Government also requests the trade and development partners of Swaziland to take note of the tangible progress made in addressing the issues raised by the ILO. Based on the positive progress, the year 2015 will be the year when trade relations with key development partners will be improved, thus improving economic development and employment.

In addition, before the Committee, a Government representative made reference to the written information provided by the Government and she informed the Committee of the measures that had been taken, including with respect to the amendment of the Industrial Relations Act, as well as steps that had been taken towards reviewing the Public Order Act, the Suppression of Terrorism Act, the Public Services Bill and the Correctional Services (Prison) Bill, and initiatives taken with a view to adopting a Code of Good Practice on protest and industrial actions. As reflected in the written information, tangible progress had been made on the issues referred to by the Committee of Experts. She requested that the ILO continue to provide support to ensure that all parties were able to exercise their rights within the limits of the law, and encouraged the social partners to act in the spirit of tripartism, partnership and cooperation.

The Employer members recalled that the case was serious and had been discussed by the Committee 12 times. The Government had previously indicated to the Committee, in June 2013, that it would address all outstanding legislation as a matter of urgency. The Employer members recalled the conclusions that had been adopted by the Committee in June 2013, as well as the statement of the Employer members during the Committee’s discussion in 2014 that urgent action was required to address the outstanding issues. With respect to the issues raised by the Committee of Experts, the amendments to the Industrial Relations Act had been adopted in November 2014, and subsequently, the registration of federations of workers and employers had taken place in May 2015. The Employer members expressed concern regarding the length of time that the process had taken, and trusted that there would be no further interference with the registration of trade unions or employers’ organizations, in violation of the Convention. They welcomed the developments that had led to the adoption of the amendments to the Industrial Relations Act, which now permitted the recognition of workers’ and employers’ organizations under the law, and urged the Government to ensure that the right of association of all such organizations was ensured in practice. Such organizations should be given autonomy and independence to fulfil their mandate and represent their members. Noting the Committee of Experts’ indication that the lawyer of TUCOSWA, Mr Maseko, was still in prison, the Employer members expressed concern regarding any action to penalize legal counsel for representing their client’s interests, which constituted a violation of freedom of association. Mr Maseko should be released from detention. The Employer members expressed concern regarding the Government’s justification for that imprisonment with explanations on the rule of law and for his alleged written attack on the judiciary through a published article. The Employer members expressed concern that the Government’s explanation with regard to the status of the Public Service Bill and the Correctional Services (Prison) Bill were quite similar to the previous explanations provided. With respect to the review of the Public Order Act, the Employer members encouraged the Government to provide information to the Committee of Experts on progress made in that regard. With respect to the request of the Committee of Experts concerning the right to strike, the Employer members expressed the view that such requests fell outside the scope and mandate of that Committee in relation to the Convention, and that the terms and conditions of industrial action, including the issue of sympathy strikes, should be determined at the national level. The Employer members would continue to monitor adherence to the principle of freedom of association in the country. They were willing to support the Government to promote freedom of association, in both law and practice. They welcomed the registration of TUCOSWA and other federations, but noted with concern the stalling of progress with regard to the outstanding legislative issues. The Employer members expressed concern regarding issues relating to freedom of association in practice.

The Worker members expressed disappointment at the Government’s statement that the repression of the trade unionists was in reaction to acts of violence perpetrated against the police when they had mounted an armed response to a dispute arising from collective action by the workers. Such an interpretation of a fundamental right, recognized by the social partners, was thoroughly shocking. It was the sixth consecutive year that the Committee found itself faced with the Government’s total failure to apply the Convention, after having given it every possible opportunity to undertake the necessary reforms. Two high-level ILO missions had been sent to the country, the most recent of which, in 2014, had concluded that for the past ten years there had been no progress whatsoever in terms of the protection of the right to freedom of association. The ILO had also provided the country with technical assistance. Yet the Government still had full discretion over the approval of the registration of trade unions, a power it continued to use to restrict freedom of expression and trade union activities, thereby continuing its violation of the right to establish trade unions without prior authorization. The Government had thus revoked the registration of TUCOSWA when in March 2012 it had committed itself to backing multipartite democracy, on the grounds that there was a gap in the legislation regarding the registration of union federations. The Ministry of Labour had subsequently announced the suspension of activities of all union federations in October 2014, as well as of ATUSWA, one of the biggest sectoral unions in the country which was affiliated to TUCOSWA. The unions had been ordered to dissolve their various bodies and their financial structure, pending the amendment of the Industrial Relations Act. However, the revision of the Industrial Relations Act in 2014 had not reflected the tripartite consensus that had been reached in the Labour Advisory Board and did not comply with the Convention, specifically with respect to the right to establish trade unions without prior authorization, as the Act gave the labour commissioner discretionary power in the registration of trade unions. TUCOSWA had been registered by the labour commissioner, in accordance with the new legislation, six months after it had officially renewed its request, while ATUSWA had still not been registered 21 months after having presented its request and was not authorized to engage in union activities as it was considered an illegal entity by the police. Workers who engaged in peaceful, legal and legitimate union activities were constantly exposed to police intimidation and violence. The police systematically attended union assemblies and conducted regular searches of union offices which, if they took place without a warrant, constituted grave and unjustifiable interference in trade union activities. TUCOSWA had been refused authorization in March 2015 to hold an internal assembly of fewer than 20 people, by virtue of the unjustified application of the Suppression of Terrorism Act, on the grounds that it had to have prior authorization. Additionally, the police had interrupted two TUCOSWA assemblies in February 2015 and had injured one of its leaders, while the President of the People’s United Democratic Movement (PUDEMO) and the secretary-general of the Swaziland Youth Congress (SWAYOCO) had been arrested and charged under the Suppression of Terrorism Act following a speech at the 1 May 2014 celebrations organized by TUCOSWA. They were now facing 15 years’ imprisonment with hard labour and had twice been refused bail; yet more than a year after their arrest they had still not been sentenced.

The Worker members also drew attention to the 2014 arrest of TUCOSWA’s lawyer, Mr Maseko, and that of a journalist for criticizing the judicial system, to the placing in solitary confinement of the former and to their sentencing to two years’ imprisonment for contempt of court. Those serious and systematic violations perpetrated against workers in the exercise of their rights were legitimized by the national legislation such as the Suppression of Terrorism Act, the Public Order Act and the King’s Proclamation of 1973, all of which contravened the Convention. For many years, the Committee of Experts had urged the Government to modify its legislation and had recommended the revision of certain laws. Bill No. 18 of 2013, which had been approved by the tripartite Labour Advisory Board, would have given effect to those recommendations, but it had not been submitted to Parliament. With regard to freedom of association, the situation had greatly deteriorated during the previous year, when numerous trade unionists had been arrested or imprisoned or had suffered physical violence. The Government had failed to bring its law and practice into conformity with the Convention or to engage in a constructive dialogue with the social partners. The international community had grown weary. The Worker members recalled the resolutions condemning the situation which had been adopted by the African Commission on Human and Peoples’ Rights, the trade sanctions imposed by the United States, the European Parliament Resolution of 21 May 2015 (2015/2712(RSP)) calling for the immediate release of the prisoners previously mentioned and full compliance with the Convention, failing which Swaziland risked having its trade preferences withdrawn by Europe. The Worker members made it clear that the workers could wait no longer for resolutions to the problems identified.

The Employer member of Swaziland recalled that the ILO high‑level mission that had visited the country in January 2014 had highlighted that the Industrial Relations Act required revision in order to ensure full compliance with the Convention and enable recognition and registration of workers’ and employers’ federations. Those commitments had been achieved, which would stabilize industrial relations. The previous disagreement with workers concerning civil and criminal liability during strikes and protest action had been resolved. The Government had discussed with the social partners the revision of the Code of Good Practice on protest and industrial actions, and the employers were ready to give their input to ensure that the Code could be both finalized and implemented. The Government had stated that the Code would be finalized by July 2015, which, if implemented properly would ensure peaceful strikes and protest actions as well as provide full conformity with the Convention. ILO technical assistance would once again be requested to address the outstanding legislative issues. The creation and implementation of legislation was the most important milestone. It was also important to create a legal framework which could be understood and, consequently, fully complied with. The promise to amend the Industrial Relations Act had been kept, and all workers’ and employers’ federations that were in compliance with that Act had been registered. Both civil and criminal liability had been reviewed and included in the Industrial Relations Act. He urged the Government to work on the two remaining pieces of legislation, the Public Order Act and the Suppression of Terrorism Act, and to seek, if necessary in the process of finalization, ILO technical assistance.

The Worker member of Swaziland stated that his federation, TUCOSWA, had recently been registered following a three-year delay. Despite that, it remained impossible to freely exercise the right of freedom of association and leaders of his organization were continuously harassed by police. TUCOSWA had held, in February 2015, a mass meeting and the participants had experienced police intimidation. In March 2015, the police had stormed the National Executive Committee meeting and some leaders of TUCOSWA had suffered serious injuries. In April 2015, the police had publicly warned the members of TUCOSWA not to participate in 1 May celebrations. Three days following the registration of TUCOSWA, the police had engaged in monitoring of the federation’s office, and its secretary-general had been questioned. He expressed regret at the intimidation to which several leaders of the Swaziland Transport and Allied Workers Union (STAWU) had been subjected. The police had required that union to provide the minutes of all its meetings, which was a restriction on freedom of association and had to be stopped immediately. Several efforts had been made by the ILO and other institutions in order to ensure the respect of civil rights in the country, but there had been no concrete results. Far-reaching measures were therefore needed in order to elicit concrete action from the Government.

The Government member of Latvia, speaking on behalf of the European Union (EU) and its Member States, as well as the former Yugoslav Republic of Macedonia, Montenegro, Serbia, Albania, Norway, the Republic of Moldova and Armenia, expressed concern at the state of freedom of expression, opinion, assembly and association in the country. She recalled the commitment that had been made by the Government under the Cotonou Agreement – the framework for Swaziland’s cooperation with the EU – to respect democracy, the rule of law and human rights principles, which included freedom of association. The European Parliament Resolution of 21 May 2015 (2015/2712(RSP)) had called on the Government to take concrete measures to respect and promote human rights in the country. In that respect, compliance with the Convention was essential. She welcomed the registration, in May 2015, of TUCOSWA and the other federations, whose recognition had been called for by the Committee. Those organizations were expected to be given the space and the autonomy they needed. She called on the Government to respect trade union rights at all times. She expressed concern at the arrest and sentencing of several human rights defenders, which appeared to be a direct contradiction of the right of freedom of expression and she joined the call of the Committee of Experts for their immediate and unconditional release. The Committee of Experts had highlighted several legal acts that were not in conformity with the Convention, and the Government should take the necessary measures to bring its legislation into compliance in that regard. She encouraged the Government to take further steps to ensure a credible, independent and effective judicial system that could protect the rule of law, workers’ rights and wider human rights in the country. She called on the Government to cooperate with the ILO and to respond to the requests of the Committee of Experts. She urged the Government to avail itself of ILO technical assistance with a view to addressing the outstanding issues.

The Employer member of Zambia commended the Government and the social partners for the successful amendment of the Industrial Relations Act, thus allowing the registration of federations in the country. The registration of employers’ and workers’ organizations was an achievement, as it had previously been requested by the Committee. That demonstrated the commitment of the Government towards achieving full compliance with the Convention, and was a milestone in the creation of peaceful industrial relations. The elaboration of the Code of Good Practice on protest and industrial actions was close to completion, and the Government should be encouraged to expedite that process. Finally, he urged the Government to continue to work with the social partners and to refrain from any violations of trade union or workers’ rights. The ILO should monitor the progress achieved and provide any technical assistance required.

The Worker member of Nigeria, also speaking on behalf of Worker members from the member States of the Economic Community of Western Africa States, indicated that the accomplishments reported by the Government at the Committee remained hollow as the situation in practice suggested. He stated that participation in trade union activities remained a serious crime in Swaziland as exemplified by the arrest of Mario Masuko and Maxwell Dlamini for taking part in 1 May celebrations. They were detained under deplorable conditions in violation of the UN Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and, as a result, Mr Masuko’s health had deteriorated. The speaker stressed the need for the implementation of the rule of law for the guarantee and enjoyment of human and trade union rights. Thulani Maseko and Bheki Makhubu, had been jailed for pointing out the deficiencies of Swaziland’s judicial system. Recalling that these four persons were in solitary confinement, which in itself constituted torture, he denounced the situation in which human rights defenders were unjustly detained for speaking out on issues of justice. He stated that good conscience must resist, so that impunity would not be allowed to thrive.

The Government member of Angola congratulated the Government for the information provided and for its willingness to continue collaborating with the ILO. The Government had been asked to provide evidence of having complied with the recommendations made by the Committee related to the application of the Convention, which called for several amendments to the labour legislation. The amendment processes had taken time and he congratulated the Government on the progress made in addressing the recommendations, which showed its willingness and commitment to bridging the gaps that existed in the legislation. He urged the Government to continue with the ongoing process of reform so as to improve the labour legislation with a view to ensuring that it was in line with ILO standards.

The Worker member of South Africa indicated that the number of trade union, civil and political prisoners had grown tremendously over the years, including Thulani Maseko, Bheki Makhubu, Mario Masuko, Maxwell Dlamini, Zonkhe Dlamini, Amos Mbhedzi, Sonkhe Dube, Roland Rudd and Silolo Thandaza. Mario Masuko had been arrested simply for addressing workers and peacefully calling for democracy and still remained in jail. The persecution of trade unionists was disguised as fighting terrorism. Legislation in Swaziland was one of the most cruel and suppressive legislations that officially criminalized the defence of human and trade union rights, and allowed the official persecution of trade union and civil rights activists. Moreover, the non-registration of unions under the pretext that they were engaged in politics symbolized the way in which the Government had been dealing with the matter. The speaker mentioned that, having failed to suppress TUCOSWA and unions in general, the Government had formed its own bogus union, called SEEIWU, allegiant only to the monarchy and not to workers. South African trade unionists who had been invited by TUCOSWA to visit their sister unions in Swaziland clearly concluded that there were many similarities between how the Swazi regime and the former apartheid regime in South Africa operated with regard to the persecution of workers and human rights activists. The speaker concluded by stating that there could be no free trade union activity without an enabling environment for the democratic expression of all rights of the people as citizens of the country, including workers.

The Government member of Namibia noted with satisfaction that the Government had made progress with respect to the legislative reform, including the registration of federations of employers and workers. She called for the intensification of ILO technical assistance to address the remaining issues and hoped that, given the progress already made, the case would be resolved soon.

The Worker member of the United Kingdom indicated that this case was gaining more condemnation. She recalled that in view of the situation in Swaziland, the European Parliament had recently questioned the advisability of the Economic Partnership agreement with a group of South African countries, including Swaziland. The European Parliament had also condemned the repression of trade union and human rights through the use of anti-terrorism legislation to intimidate activists, engage in political exclusion, and to restrict the rights to freedom of association and assembly. It had also called for the immediate release of prisoners of conscience, Thulani Maseko and Bheki Makhubu, jailed for publicly criticizing the Government. Most importantly, the European Parliament had passed a resolution providing that the institutions of the EU should require Swaziland to comply with its international obligations and to produce real progress, before signing any agreements with Swaziland. In concluding, she emphasized that those breaches of the Convention had been long-standing and that workers in Swaziland could not wait any longer for change.

The Government member of Zimbabwe observed that the Government had taken considerable steps to improve compliance with the Convention, and the results were encouraging. He particularly noted the amendment of the Industrial Relations Act, the Government’s commitment to review the Public Order Act and to operationalize social dialogue and tripartite consultation, and the elaboration of a Code of Good Practice for protest and industrial actions in a tripartite manner. As these were substantial improvements since the last session of the Committee, he called upon the Government and the social partners to build on the progress already realized. He also urged the Office to provide technical assistance with respect to capacity building.

The Worker member of the United States expressed concern that the amendments made to the Industrial Relations Act did not bring the law into full compliance with the Convention and that, in practice, laws would continue to be used to suppress trade union rights. Furthermore, she noted that the Government had still not amended its other laws, including the Public Order Act and the Suppression of Terrorism Act. The Government’s lack of a sense of urgency and concern in addressing those long-standing issues was unacceptable. She was concerned that, in May 2015, Swaziland had lost the benefit under the African Growth and Opportunity Act (AGOA), giving preferential market access to the United States under the condition that internationally recognized workers’ rights, including the right of association and the right to organize and bargain collectively, would be protected. That revocation would be felt most deeply by the workers in the country. It was estimated that 17,000 jobs would be lost as a consequence. The points considered when the AGOA benefits had been revoked (known as the “benchmarks”) were very similar to the considerations by the Committee of Experts. For example, both had asked the Government to amend the Public Order Act in order to allow the full recognition of freedom of assembly, speech and organization. She explained that AGOA eligibility could be restored if the Government would meet the benchmarks. Swazi trade unionists were attempting to mobilize the Government to address those outstanding issues with respect to the benchmarks. In that context, two activists had participated in the Africa Leaders’ Summit held in Washington D.C. in August 2014. The Prime Minister had stated that these activists should be “strangled” upon their return to the country. She considered that when the Government openly spoke about killing trade unionists, there remained much work to be done.

The Government member of Botswana noted with satisfaction that tremendous progress had been made by the Government since last year to improve the industrial relations climate in the country. Since the implementation of those reforms might come with challenges, he called upon all parties concerned to genuinely work together to improve the lives of Swazi workers. He expressed support to the Government in that respect.

The Worker member of Argentina expressed his concern at the serious violations of freedom of association in Swaziland. The Articles of the Convention should be given effect simultaneously. The registration of TUCOSWA, following a three-year wait, was the result of pressure exerted by workers and complaints before the ILO supervisory bodies. The trade union organizations nevertheless faced many obstacles to the implementation of their programmes. Their meetings and mobilizations were frequently prevented by the security forces, in a context of violations of fundamental human rights. It was not sufficient to allow organizations to register if afterwards they could not carry out their programmes, if the law qualified nearly all their activities as terrorist activities or contravening public order, if workers were faced with the threat of being arrested for participating in trade union activities, or when the organizations had to give prior notice to the security forces for almost all their activities. For the workers of Argentina and Latin America, the situation evoked the saddest years of their history, during which the Committee had been a space of solidarity. That same solidarity should today be directed towards workers, trade unions and human rights defenders in Swaziland, so that democracy and human rights, including freedom of association, might become a reality throughout the world.

The Government member of the United States referred to the positive amendments introduced in 2014 to the Industrial Relations Act as regards the registration of employers’ and workers’ federations and the repeal of the civil and criminal liability of trade union leaders. She welcomed the registration in 2015 of TUCOSWA and the participation of its president in the International Labour Conference. Despite these encouraging developments, several concerns remained towards full compliance with the Convention, such as: the need to amend the Public Order Act and the Suppression of Terrorism Act for which the Government was encouraged to take full advantage of ILO technical assistance; the need to enact the Code of Good Practice and disseminate it to police forces; and to effectively guarantee the right to freedom of association in practice. The Government must end both the practice and threat of police intimidation and interference with trade union activities as a means of suppressing the full enjoyment of the right to freedom of association and the right to collective bargaining. The arbitrary detention of trade unionists, such as that of Mr Thulani Maseko since 2013 for exercising the fundamental right to freedom of speech, must end and the Government needed to ensure their immediate and unconditional release. In 2015, in view of the above, the United States had withdrawn Swaziland’s eligibility for trade preferences under AGOA and continued to monitor progress towards the realization of the protection and enjoyment of the right to freedom of association in conformity with the Convention. She urged the Government to accept all necessary ILO technical assistance to accomplish the requisite legislative reforms recommended by the Committee of Experts and to create an environment conducive to open social dialogue and full cooperation with the social partners.

The Worker member of Norway, speaking also on behalf of Worker members of the Nordic countries, deplored that, despite repeated promises from the Government to improve the situation, this Committee was once again discussing the case of Swaziland. The delaying in the registration of TUCOSWA, as well as the employers’ organizations, had disrupted the normal trade union functions and had affected the status of social dialogue. After three years, the TUCOSWA had finally re-registered in May 2015, but the Ministry of Labour and Social Security had still been incapable of guaranteeing unions the freedom to operate without interference. Indeed, the authorities had continued to intimidate and disturb trade union activities by demanding to see the meeting agenda and by being present during meetings. Activists and TUCOSWA sympathizers were still being subjected to arrests and thus were being deprived of their most fundamental human rights. She urged the Government to avoid cosmetic reforms and to enter into genuine dialogue with the social partners, so that the case would not appear on the agenda of the Committee again.

The Government member of Zambia was pleased to note the progress made by the Government with respect to the case, including, among others, the amendments to the Industrial Relations Act and the finalization of the Code of Good Practice on protest and industrial actions, as well as the review of other pieces of legislation. In taking these measures, the Government had reached out to the social partners to find amicable solutions. He urged the Government to continue that effort, upholding tripartism. He also urged the Government to implement the new measures adopted in the past year with a view to addressing the emerging issues. He appealed all the stakeholders in the country to ensure the promotion of social dialogue so that solutions to outstanding problems would be found and implemented. He also appealed to the Office to continue providing technical assistance to Swaziland with respect to the matters raised in the case.

The Employer member of Malawi, speaking also on behalf of the South African Development Community Private Sector Forum, expressed the view that the Government and the social partners had begun to address the issues raised in the case, although the results might not be immediate. The labour legislation had been amended and further review was expected with respect to the Industrial Relations Act. He hoped that the ILO would encourage tripartite cooperation at the national level in implementing national policies. Such an environment was conducive to economic growth. He therefore encouraged the Government to continue to engage with the social partners. He also commended the employers in Swaziland for their commitment to the process.

An observer representing the International Trade Union Confederation (ITUC) had been running a small business, but now had a new role to advocate for the release of her husband, Mr Thulani Maseko, who had been sentenced to a two-year prison term since March 2014 for having criticized the injustice a worker had faced through the judiciary. The court had indicated specifically that his case would be treated differently. She recalled that in 2009, Mr Maseko had been charged with sedition for his May Day speech, a charge that could have led to a 15 to 20-year sentence. She was of the view that the Government was clearly using him in order to intimidate citizens and prevent them from raising their voices against abuse. Despite imprisonment, Mr Maseko remained strong and had written a letter on the first anniversary of his imprisonment, which had resulted in solitary confinement for three weeks. While access to him in prison had been denied, she had been able to see him briefly and had assured him of the support from his colleagues in the trade union movement and in civil society. She hoped that she would be able to carry him the same message from the Committee.

The Government member of Cuba took note of the fact that, as a result of tripartite consensus and with immediate effect, the Industrial Relations Act had been amended and had changed the procedure for registering workers’ and employers’ organizations and the criminal and civil liability of trade unions. The Government was prepared to deal with registration requests in a manner that gave full effect to the right to freedom of association. The Committee of Experts had taken note with satisfaction of the deletion of sanitary services from the list of essential services and the Government had provided information on other legislative amendments made in line with the Committee’s comments. The above demonstrated the Government’s political will to comply with the Convention, and to respect the principles of freedom of association, which the Committee should take into account.

The Government member of Morocco thanked the Government for the information that it had provided, which had answered, in part, the Committee of Experts’ comments concerning the registration of workers’ and employers’ federations and legislative matters. He noted with interest the clarifications provided on freedom of association and collective bargaining, the Public Service Bill, the amendments to the Industrial Relations Act and the entry into force of the Constitution which superseded the 1973 Proclamation and its implementing regulations. Underlining the Government’s strong will to align the country’s legislation and practices with the Convention and supporting the efforts being made, he suggested that the Government be provided with the technical assistance required to revise the Public Order Act. The Government should be given sufficient time to further reforms, particularly those involving the Correctional Services (Prison) Bill and the Code of Good Practice for protest and industrial actions.

The Government representative noted and welcomed all the interventions in the Committee. She explained that the Government was committed to implementing the recommendations put forward by the Committee of Experts in its observation, and hoped that the adoption of the Code of Good Practice, the amendment of the Public Order Act and the resuscitation of social dialogue would assist in maintaining a healthy relationship with the social partners. The Government representative requested the Committee to recognize the tangible progress made, and to encourage the social partners to work with the Government. She also asked for the ILO’s technical assistance for the implementation of the measures mentioned, as well as workshops concerning the rights provided for in the Convention. The Government representative was aware of the concerns regarding the independence of the judiciary, and stated that these concerns would be addressed as a matter of urgency. Thanking the ILO for its help, she was hopeful that the positive approach taken by the Government and the social partners would help diffuse the conflict and facilitate future dialogue.

The Employer members were pleased with the Government’s constructive and positive attitude regarding the various interventions and recommendations made. They wished to recognize the following developments as improvements: the amendment of the Industrial Relations Act which allowed the registration of employers’ and workers’ organizations, which had led to the registration of TUCOSWA and employers’ organizations in May 2015; the circulation of the draft Code of Good Practice, elaborated with the active participation of the social partners; and the consultations held with the ILO in respect of the Public Order Act, for which a consultant had been selected for its review. The Employer members encouraged the Government to continue those necessary legislative reforms, in consultation with the social partners as well as with the collaboration of the ILO, so as to generate a climate in which freedom of association of employers and workers would be respected in law and practice. The Employer members raised concern with respect to the Public Service Bill, the Public Order Act and the Correctional Services (Prison) Bill and requested the Government to ensure that criminal and civil liability arising from these instruments would not impact freedom of association. The Employer members were also pleased by the Government’s request for ILO technical assistance and requested that this assistance focus on the outstanding issues. They highlighted that it was important to implement necessary reforms both in law and practice, thereby supporting economic growth, creating an environment for sustainable enterprises to thrive, and creating jobs. The Employer members urged the Government to complete the work that it had begun without further delay.

The Worker members stated that they would have liked to be positive but it proved to be difficult. It was now time for urgent action. They took note of the progress indicated by the Government; yet they were of the view that if one was to examine closely the situation, it was hardly possible to see any progress. With regard to the Industrial Relations Act, they noted that section 32 continued to give unlimited discretionary powers to the Labour Commissioner in respect of the registration of trade unions. The registration of TUCOSWA, which had taken more than three years, should not be considered as a governmental success. Moreover, ATUSWA, one of the largest sectoral unions in the country, had formally lodged its application more than 21 months previously and was still awaiting registration. They stated that it remained to be seen whether or not the amendments to the Industrial Relations Act would mean that trade union leaders would cease to be subjected to criminal and civil liability in practice. They recalled that the discussions on the Code of Good Practice for protest and industrial actions had finalized in July 2014, yet the Government had waited until 19 May 2015 to forward the document to workers for their comments. Regarding the technical assistance sought by the Government in order to amend the Public Order Act and bring it into line with the Convention, that technical assistance had been provided in 2011 by the ILO on that very issue. As a result, clear and specific recommendations had been given as to the manner in which the Act needed to be amended; but the Government had chosen to ignore these recommendations for over four years. The Government considered that the revision of the Correctional Services (Prison) Bill was a sign of progress, but they recalled that, for more than two decades, the Committee of Experts had been urging the Government to adopt that legislation. To date, prison staff were still not allowed to join or establish a trade union. Swaziland had not fully addressed any of the recommendations provided by the supervisory bodies over several decades. Technical assistance, fact-finding and high-level missions by the ILO had not been seized as an opportunity to bring laws and practices into compliance with the Convention. Instead, the police had continued to attack and arrest trade unionists. The Worker members therefore called upon the Government to: immediately and unconditionally release all workers imprisoned for exercising their right to freedom of expression; register ATUSWA and amend section 32 of the Industrial Relations Act in order to ensure that trade unions could be registered without previous authorization; amend the Public Order Act and the Suppression of Terrorism Act in order to bring it into compliance with the Convention; adopt the Code of Good Practice without any further delay and ensure its effective application in practice; adopt the Correctional Services (Prison) Bill to allow prison staff to join and establish trade unions; and investigate arbitrary interferences by police in lawful, peaceful and legitimate trade union activities.

Conclusions

The Committee took note of the written and oral information provided by the Government and the discussion that followed.

The Committee noted that the report of the Committee of Experts referred to grave and persisting issues of non-compliance with the Convention in particular in relation to the de-registration of all federations in the country: the Trade Union Congress of Swaziland (TUCOSWA), the Federation of Swaziland Employers and Chambers of Commerce (FSE–CC) and the Federation of Swaziland Business Community (FSBC). The Committee of Experts called on the Government to register these organizations without delay and to ensure their 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 of Experts’ comments also referred to the ongoing imprisonment of TUCOSWA’s lawyer, Mr Maseko, and a number of laws that needed to be brought into conformity with the provisions of the Convention.

The Committee took note of the information provided by the Government representative relating to the amendment made to the Industrial Relations Act (IRA) by virtue of which TUCOSWA, the FSE–CC and the FSBC are now registered. She indicated the Government’s full commitment to ensuring the full operationalization of all tripartite structures and stated that the federations have been invited to nominate their members on the various statutory bodies. She emphasized that this development would assist in maintaining a healthy social dialogue in Swaziland. Sections 40(13) and 97 of the IRA had also been amended to respond to the comments of the Committee of Experts. A revised Code of Good Practice on protest and industrial actions had been circulated and the Government was awaiting comments from the social partners, while the revised bill to amend the Suppression of Terrorism Act was referred back to Cabinet to ensure that the amendments would not compromise law and order. Similarly, the Correctional Services (Prison) Bill had been referred back to the Minister for Justice and Constitutional Affairs. As for Mr Maseko, she recalled that he was charged and convicted for contempt of court after publishing an article which constituted a scurrilous attack on the judiciary and was calculated to undermine the rule of law in Swaziland. The issue of the independence of the judiciary was being addressed as a matter of urgency. She concluded by reiterating her Government’s request for ILO technical assistance to ensure the completion of the Code of Good Practice and amendments to the Public Order Act, and indicated her desire for training for all parties in this regard.

Taking into account the discussion, the Government is urged, without further delay, to:

• release unconditionally Thulani Maseko and all other workers imprisoned for having exercised their right to free speech and expression;
• ensure all workers’ and employers’ organizations in the country are fully assured their freedom of association rights in relation to the registration issue, in particular, register the Amalgamated Trade Union of Swaziland (ATUSWA) without any further delay;
• amend section 32 of the IRA to eliminate the discretion of the Commissioner of Labour to register trade unions;
• ensure organizations are given the autonomy and independence they need to fulfil their mandate and represent their constituents. The Government should refrain from all acts of interference in the activities of trade unions;
• investigate arbitrary interference by police in lawful, peaceful and legitimate trade union activities and hold accountable those responsible;
• amend the 1963 Public Order Act following the work of the consultant, and the Suppression of Terrorism Act, in consultation with the social partners, to bring them into compliance with the Convention;
• adopt the Code of Good Practice without any further delay and ensure its effective application in practice;
• address the outstanding issues in relation to the Public Services Bill and the Correctional Services Bill in consultation with the social partners; and
• accept technical assistance in order to complete the legislative reform outlined above so that Swaziland is in full compliance with the Convention.

The Committee decided to include its conclusions in a special paragraph of the report.

The Government representative thanked the Committee for its conclusions. Highlighting that the Government had made significant progress in respect to its legislation, she expressed surprise at the conclusions, in particular the last part. She reiterated the Government’s commitment to address the issues raised by the Committee and to report periodically.

The Government member of South Sudan congratulated the Government for the commendable actions it had taken to address the concerns on labour issues. She noted in particular the amendment of the Industrial Relations Act and the registration of federations. With regard to the alleged violation of the right to freedom of association by the police, strikers should, when exercising their rights, understand the limits of their actions and conduct their activities in a manner respectful of the rule of law. In concluding, she called upon the ILO to continue providing technical assistance to Swaziland in order to achieve full compliance with ILO Conventions.

Individual Case (CAS) - Discussion: 2014, Publication: 103rd ILC session (2014)



The Government provided the following written information.

During the 102nd Session of the International Labour Conference, the Conference Committee welcomed the information provided by the Government on the publication of the Industrial Relations (Amendment) Bill No. 14 of 2013 and noted the report that all outstanding legislative amendments would be attended to and the Government’s commitment to observe and implement Convention No. 87. The Government made an undertaking with time lines to demonstrate its commitment to take the issues forward, in consultation with the social partners. With regard to progress made to date, the Committee will recall that the year 2013 was the national election year for the Kingdom of Swaziland. National elections are, by any standard, a very challenging task for any government. Peace, stability and socio-economic development are, to a greater extent, a function of a successful election process. Parliament was dissolved on 31 July 2013 and Cabinet was fully constituted on 4 November 2013. Parliament was officially opened on 7 February 2014. This effectively reduced parliamentary activity by seven months and left the Government with five months to comply with its undertakings. This situation 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 Industrial Relations Act (IRA) are passed into law. The Industrial Relations (Amendment) Bill No. 14 of 2013, for instance, was one of over 27 bills, which were before Parliament when it dissolved. However, the Government has shown its commitment and prioritized the Bill and it was the first Bill to be tabled after the opening of Parliament. The progress to date is set out below. With regard to the amendment of the Industrial Relations Act to allow for registration of federations, the current problems related to freedom of association emanate from a lacuna in the law regarding registration of federations. The Government has now tabled in Parliament an amendment bill which seeks to comprehensively provide for the registration of federations. Following the opening of Parliament on 7 February 2014, the Bill was prioritized and tabled as the first Bill (Industrial Relations (Amendment) Bill No. 1 of 2014). In terms of the Constitution of the Kingdom of Swaziland, 2005, bills are debated after the debates on the Appropriation Bill, which by its very nature is an urgent bill. However, in this case and in recognition of the urgency of the matter, the Bill was tabled before the Appropriation Bill. The Bill was quickly referred to the Parliamentary Portfolio Committee of the Ministry of Labour and Social Security. However, at the request of the Portfolio Committee the Bill was then withdrawn. According to the Committee, the withdrawal was necessitated by the intervention of the US Department of Trade, which expressed concern that the amendments of sections 40 and 97 of the Industrial Relations Act, as requested by the ILO, had not been included. Workers and employers also expressed their dissatisfaction with a number of sections of the Bill as it stood, and made written proposals for further refinement of the Bill, notwithstanding the fact that the Bill was published in May 2013 and no written objections were received from the social partners. The Portfolio Committee was of the strong view that rushing the Bill through the legislative process was futile if the end product would not serve its purpose. The Government noted the position of Parliament and the Bill was withdrawn from Parliament for further consultations as requested. It should be further noted that when the Bill was withdrawn from Parliament on 10 April 2014, the Labour Advisory Board, which should provide advice to the Minister, was no longer operational, following the withdrawal of workers from all tripartite structures. However, considering the importance and urgency of the Bill, negotiations are ongoing with the social partners. As a result of the consultations, on 19 May 2014, amendment proposals to section 97 were agreed upon; however, for section 40 of the Industrial Relations Act, employers and workers cannot agree. It is clear that broader consultation is required to unlock this deadlock. With regard to the operationalization of tripartite structures, following the undertaking to work together with social partners through General Notice No. 56 of 2013, the Government is pleased to report that, in all areas of action that require the involvement of social partners, especially legislative review activities, social partners were fully consulted and consultations went well and were held in full freedom. A lot of the progress achieved so far is credited to the smooth operation of all social dialogue structures. This is so, despite the fact that, on 28 March 2014, workers withdrew from all statutory bodies, citing dissatisfaction with the provisions of General Order No. 56 of 2013 and allegations of disruption of the Trade Union Congress of Swaziland (TUCOSWA) programmes and activities.

The Government accepted and hosted the high-level ILO fact-finding mission from 27 to 29 January 2014 (two months after the new administration came to office). The mission held consultations with the Government and its social partners to gather information on steps taken to assess progress made in all outstanding issues. In its report the mission urged the Government to: (a) fast-track the process of facilitating the adoption of the amendments into legislation, for the registration of the workers’ and employers’ federations by the end of April 2014 and to see their actual and immediate registration thereafter and in time for the ILC in June 2014; and (b) consult with the social partners and the ILO Pretoria Office to draw up a timetable by the end of April 2014 for the finalization of all other outstanding matters. With regard to progress made on other legislative amendments, as advised by the ILO, the Public Service Bill was indeed tabled before the National Social Dialogue Committee, which in turn referred it to the Labour Advisory Board for review. Since the Government’s report to the ILO, dated 28 October 2013 (stating that the Bill has been referred to the Labour Advisory Board) it has been reviewed by the Board and is now with the Ministry of Public Service for adoption. Thereafter it will be submitted to Cabinet for approval, publication and brought to Parliament for processing. By any standard of measure the Government has achieved tangible progress which should be noted and acknowledged as such. With respect to the determination of minimum services in sanitary services (to ensure that workers are not unduly denied their right to strike). This is so particularly in light of the fact that whereas the Government was requested to ensure a minimum service in sanitary services, the Government agreed with the social partners that sanitary services be removed altogether from the list of essential services as per the Industrial Relations Act. The Government wishes to reiterate that the King’s Proclamation to the Nation of 12 April 1973 is 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 continued presence of this issue on the agenda of outstanding issues for Swaziland is unfair to the Government. Progress is being made on the issues concerning the 1963 Public Order Act. Swaziland, because of shortage of Legislative Drafters and expertise, approached the ILO to assist and the request was accepted. The ILO requested terms of reference and these were given to the ILO Regional Office in Pretoria on 17 April 2014. As soon as the legislative drafter has been identified and made available, the drafting process will commence. The Labour Advisory Board has finished debating the draft Correctional Services (Prison) Bill which, among other things, deals with the right to organize for prison staff, 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. Progress so far is that the draft Code of Good Practice for protest and industrial actions 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 ILO in June 2013 and again in April 2014. It is hoped that the consultation between the Government and the ILO will continue. The Suppression of Terrorism (Amendment) Bill has been considered by Cabinet, published in a Government Gazette as Bill No. 18 of 2013 and awaits Parliamentary debate for passage into law.

In addition, before the Committee, a Government representative, with reference to the Committee of Experts’ request to ensure the registration of employers’ and workers’ federations, explained why the amendment bill of the Industrial Relations Act (IRA) had still not been passed. The bill had been drafted with the social partners’ input and issued on 23 May 2013. In line with the commitment made by the Government, the bill had been tabled in Parliament in June 2013. Progress had then been stalled, however, because Parliament was involved in debating six key election bills at the time, and had not had time to include the IRA amendment bill on its agenda before its dissolution. Following the reopening of Parliament, the bill had been given priority, and had been rapidly referred to the competent parliamentary committee. However, it had subsequently been withdrawn at the request of the parliamentary committee due to concerns expressed by another country as well as by the Swazi social partners. When the bill had been withdrawn from Parliament on 10 April 2014, the Labour Advisory Board was no longer operational. Due to the importance and urgency of the bill, however, negotiations with the social partners were currently under way. As a result of the ongoing consultations, consensus had been reached on 19 May 2014 regarding part of the new bill, but employers and workers still did not agree on one amendment; broader consultation was required to resolve the matter. The Government had accepted the proposed high-level ILO fact-finding mission, which it had hosted from 27 to 29 January 2014. During the mission, the Government had requested the ILO’s technical assistance with regard to outstanding matters; the logistics of that assistance were being organized. In the context of the Committee of Experts’ request for concrete information on progress with regard to various legislative texts, she explained that, since the Government’s report to the ILO of 28 October 2013, it had begun processing the Public Service Bill, which would be submitted to Parliament for deliberation. With regard to the need to determine a minimum level of sanitary services to ensure that workers were not unduly denied their right to strike, the Government had agreed with the social partners to remove sanitary services from the list of essential services, as per the IRA. The 1973 Proclamation had been superseded and made irrelevant by the Constitution, which guaranteed freedom of association for all in specific terms. Its continued presence on the Committee of Experts’ list of outstanding issues was unfair to the Government, and it should be removed. The Government representative said that much progress had been made since the ILO fact-finding mission, and requested an extension of the deadline for meeting the requests of the Committee of Experts. If an extension was not granted, there would potentially be massive trade and job losses, threatening the country’s stability. She reiterated the Government’s request for ILO technical assistance with regard to, inter alia: validation of the Code of Good Practice; the drafting of the Public Order Bill; and the determination of best practices on the issue of the right to organize for correctional services staff and the matter of defining trade unions’ civil and criminal liability in the IRA.

The Employer members appreciated the information provided by the Government regarding efforts made to bring law and practice in compliance with the Convention, as well as the Government’s willingness to accept ILO technical assistance. They encouraged the Government to continue to cooperate with the ILO Office in Pretoria. In light of the seriousness of this longstanding case, they expressed their surprise at the Government representative’s view that the case should no longer be examined by the Committee. During the discussion of the present case in 2013, the Employer members had pointed out, as regards the Committee of Experts’ request relating to the right to strike in sanitary services, that Convention No. 87 did not include the right to strike and that, in view of the lack of consensus, the Committee of Experts should refrain from requesting the Government to amend the IRA in this regard. In its 2013 conclusions, the Committee: (i) strongly urged the Government to immediately take the necessary steps to ensure that the social partners’ views were duly taken into account in the finalization of the IRA amendment bill and that it would be adopted without delay; (ii) expected that this action would enable all the social partners in the country to be recognized and registered under the law, in full conformity with the Convention; (iii) in the meantime, expected that the tripartite structures in the country would effectively function with the full participation of TUCOSWA, the Federation of Swaziland Employers and Chamber of Commerce (FSE&CC), and the Federation of the Swaziland Business Community (FESBC) and that the Government would guarantee that these organizations could exercise their rights under the Convention; (iv) urged the Government to conduct certain activities to ensure that progress was made within the framework of the social dialogue mechanisms in the country in relation to the other pending matters; (v) urged the Government to ensure full respect for freedom of association for all workers’ and employers’ organizations; and (vi) called on the Government to accept a high-level ILO fact-finding mission and requested that this information, as well as a detailed report, be transmitted to the Committee of Experts for examination at its next meeting.

In its 2013 observation, the Committee of Experts: (i) noted the Government’s indication that the tripartite structures in the country were functioning with the full participation of the federations of employers and workers (FSE&CC, FESBC and TUCOSWA); (ii) noted with regret the Government’s indication that the IRA amendment bill, approved by Cabinet, could not be tabled to Parliament due to other pressing parliamentary issues; (iii) observed with deep regret that TUCOSWA was still not registered and urged the Government to ensure that the necessary steps were taken for the registration without delay of TUCOSWA and the other workers’ and employers’ federations affected; and (iv) firmly trusted that the Government would report in the near future on concrete progress made on the Committee’s long-standing requests concerning amendments to several laws, such as the Public Service Bill, the Industrial Relations Act, the 1973 Proclamation and the 1963 Public Order Act. In light of the above, the Employer members: (i) looked forward to receiving the Committee of Experts’ review of the information collected during the 2014 high-level mission which would hopefully indicate that concrete and tangible measures had been taken; (ii) recommended that the Government follow a fast-track process to facilitate the adoption of amendments to the legislation concerning the registration of employers’ and workers’ federations by the end of 2014; and to ensure that they were registered immediately thereafter; (iii) noted that the present Committee would not deal in its conclusions with any issue related to the right to strike as there was no consensus that Convention No. 87 included the right to strike; and (iv) highlighted their concern about the lack of tangible progress to date and requested the Government to draw up, in consultation with the social partners, a timetable on the finalization of the outstanding matters, which would signal the Government’s commitment to compliance with the Convention.

The Worker members emphasized that the Committee had noted every year since 2009 that the Government was not complying with the Convention and still appeared not to realize that the ILO constituents expected results. In June 2013, in order to avoid having the present case included in a special paragraph of the Committee’s report, the Government had signed an agreement in which it undertook to adopt a number of time-bound measures. None of those commitments had been honoured, either with regard to legislative matters, such as the finalization of the bill amending the IRA, or with regard to the registration of TUCOSWA. Moreover, that lack of progress had been confirmed by the high-level ILO fact-finding mission which had visited the country in January 2014. The Government had continued to repress trade union activity, to arrest and imprison trade unionists and to prevent the registration of trade unions by invoking laws that did not comply with the Convention and which it had undertaken to amend. TUCOSWA had been established in January 2012 and had received legal recognition from the Ministry of Labour. When TUCOSWA had announced in April 2012 that it would boycott the 2013 legislative elections, the Government had revoked its registration on the grounds that the IRA only applied to “organizations” and not to “federations”. Furthermore, the Amalgamated Trade Union of Swaziland (ATUSWA), which was affiliated to TUCOSWA, had applied for registration in September 2013 and was still awaiting a reply. TUCOSWA had filed an appeal with the High Court claiming that the refusal to register it as a federation was unconstitutional. But after the union’s lawyer (Mr Maseko) had been arrested by the authorities on 17 March 2014, the hearing initially scheduled for 19 March 2014 had been postponed. Mr Maseko had initially been released on the order of a judge, who had then been arrested in turn, and he had subsequently been re-arrested and imprisoned. At the present time he was still in prison, after being accused of obstructing the course of justice for questioning the independence of the national judiciary in a newspaper article. The Secretary-General of TUCOSWA (Mr Ncongwane), who had been wrongly accused of instigating an illegal demonstration, had also been arrested in September 2013 and placed under house arrest. The legal assistant of the Swaziland Transport and Allied Workers Union (Mr Thwala) had been imprisoned for a year, under the Road Traffic Act and the Public Order Act, for taking part in a strike. The police and security forces continued to disrupt trade union activities, especially those of TUCOSWA, by preventing or curtailing demonstrations, and had prevented an international delegation of the International Trade Union Confederation (ITUC), which had come to collect testimonies from Swazi workers, from doing its work by confronting its members and dispersing meetings.

With regard to the legislative issues, the Worker members emphasized that the current legislation placed severe restrictions on the right to freedom of association. The IRA, the interpretation of which formed the basis of legal arguments for refusing to register trade unions and imposing civil and criminal liability on trade unionists, was still in force. Even though the amendment bill had been adopted in 2013, freedom of association was still limited since the draft conferred absolute power on the Labour Commissioner with respect to the registration of trade unions. The Public Order Act, which conferred extensive powers on the police, applied to trade unions in practice even though they were excluded from its scope. In that respect, a 2011 ILO report had recommended replacing the Act with another law clearly establishing the procedure for requests to organize public gatherings. The unions had been clamouring for revision of that legislation. Regarding the Suppression of Terrorism Act, the amendments submitted to Parliament for consideration in February 2014 had still not been examined. The Government also refused to repeal Decree No. 2 of the King’s Proclamation banning political parties and concentrating power in the hands of the King. The Correctional Services (Prison) Bill, which had been submitted to the Labour Advisory Board in 2012 and recognized employees’ right to establish associations – but not trade unions – provided for strict controls by the Commissioner of Correctional Services and, by already establishing the name of the association in question, suggested that a trade union monopoly was being established in the sector. Lastly, the Public Service Bill, which had been under discussion since 2005, contained restrictions on freedom of expression and on civil servants’ right to collective bargaining. The Worker members regretted that the Government had not followed up on any of the Committee of Experts’ observations or recommendations and that it had failed to honour the written commitments it had given at the previous session of the Conference. Deploring the Government’s unacceptable conduct, they strongly condemned the serious and constant repression, in law and in practice, of the workers in Swaziland and expressed the hope that the Government would take the present opportunity to honour its obligations and international commitments.

The Worker member of Swaziland said that the violation of the Convention by the Government had reached deplorable levels. By refusing to register TUCOSWA, the only national federation of trade unions in the country, it had stalled the prospect of any meaningful and productive social dialogue. It had deliberately misled the Committee by setting unrealistic deadlines for the revision of various pieces of legislation, not one of which had been met. Although it had agreed before the Committee to allow TUCOSWA the full exercise of its rights under the Convention and the terms of the IRA, the Government continued to brutally prevent TUCOSWA from conducting its activities. With regard to the IRA, the Government had tabled an amendment bill in July 2013 that excluded proposals made by the social partners. TUCOSWA had been pushing for the speedy amendment of various acts, especially the IRA, when Parliament was dissolved before it had been able to consider the IRA amendment bill. Although TUCOSWA had notified the Government in January 2014 that the bill was not the product of the Labour Advisory Board, the Government had tabled it again in February 2014, only to then unilaterally withdraw it, without any explanation to the social partners. This illustrated a complete absence of political will on the part of the Government to register TUCOSWA. It was also important to note that the so-called lacuna in the IRA, which necessitated its amendment in the first place, was a politically motivated concept: if the IRA was to be interpreted strictly in accordance with the Convention, it would necessarily guarantee the same rights to federations that it guaranteed to unions. TUCOSWA had made its contributions to the amendments of the following pieces of legislation by mid-February 2014: the Public Service Bill, the Correctional Services Bill, the Code of Good Practice for protest and industrial action and the Suppression of Terrorism Act. The social partners had not been given an opportunity to discuss the Public Order Bill, as the Government had alleged that its amendment was still being drafted by the Attorney-General’s Office, and that the person responsible for the drafting had died. In June 2013, the Government had reiterated its position with regard to the 1973 Proclamation, namely that it would not institute legal proceedings to obtain a definitive ruling from the highest court on the Proclamation’s status. Thus, the practical effects of the Proclamation remained in force. Social dialogue structures, having been disrupted in April 2012, had later been restored by General Notice No. 56, which provided that “all processes and programmes whose progress was affected by the issue of registration of federations shall be continued in line with principles of tripartism and shall be recognized as legitimate and all decisions made or resolutions reached shall be binding on the tripartite partners as if they had been registered in terms of the Industrial Relations Act, 2000 …”. However, the Government had continued to disrupt the activities of TUCOSWA, and a letter to the federation from the Attorney-General dated 4 September 2013 had stated that the General Notice did not, in fact, grant any rights that the IRA provided for. In light of this, TUCOSWA had requested clarification of the Government’s position regarding its participation in social dialogue tripartite structures. Receiving the promised response a month late, TUCOSWA decided to withdraw from all legislative tripartite forums. Its withdrawal had not obstructed any legislative process, however, as it had already submitted its proposals for amendments to the legislation long before. Following the 2013 ILC, the Government had continued to disrupt TUCOSWA’s activities as follows: among other incidents, on 22 July 2013, the Government had violently brought an end to a meeting of the Manzini shop stewards local council; and on 5 September 2013, security forces had arrested and detained ITUC panellists who were to hear testimonies from textile workers on violations of their rights. Furthrmore, the Government refused to register ATUSWA to date without any justification. In light of the above, the Government must be encouraged, in the strongest possible terms, to honour its obligations under the Convention for industrial and economic peace to prevail in Swaziland.

The Employer member of Swaziland indicated that in January 2014 the employers had met the ILO high-level mission which had visited the country to assess the progress achieved with respect to the commitments made at the 2013 ILC Conference. He recognized that his country had not been able to fully adhere to those commitments. In this regard, he stated that it was the employers’ view, in line with the recommendations of the high-level mission, that the registration of the workers’ and employers’ federations enabling full legal recognition by all stakeholders would ensure speedy progress. The employers had therefore been actively engaging as social partners to enable progress in the adoption of the IRA amendment bill. Recalling the employers’ concerns raised with the high-level mission that the bill did not actually reflect the agreement reached by the social partners, he indicated that they had been addressed in the meantime and trusted that, if the bill was introduced in Parliament in its current form, it would be compliant with the requirements of the Convention. The only issue on which the employers and workers were not able to agree related to criminal and civil liability during protest actions. The employers’ proposal had been that such liability be removed from individuals and be placed on the federations, as body corporates, which did not exclude the liability of employers’ federations. It was the employers’ view that once the liability on individuals had been removed, the Committee’s concerns would have been addressed. He pointed out however that the employers remained open to advice on best practices in this respect so as to reach consensus by the social partners and move forward. Finally, he stated that, while his country had not been able to meet the deadlines, there was tangible evidence and desire of the social partners, indicating that these issues could be finalized once and for all. He therefore urged the Committee to provide guidance, allow time and assist the country in moving towards full compliance with the Convention. This would ensure that Swaziland did not lose out on any of the trade privileges with its international partners, a loss that would entail a negative impact on business as well as job losses. He requested the Committee to consider allowing the completion of processes already under way to address the current compliance issues, and expressed the employers’ commitment to unlock bottlenecks wherever possible.

The Government member of Namibia took note of the information provided by the Government. Fully understanding the complexity of the matter at hand as well as the current circumstances in Swaziland, her Government encouraged the Government of Swaziland to take all measures to address the comments raised by the Committee of Experts. The Government of Namibia also requested that the Government of Swaziland be allowed more time to work on the outstanding issues, taking into account the circumstances that had prevailed during the period when it was required to comply with the issues raised by the Committee of Experts. Lastly, her Government called upon the ILO to consider the Government of Swaziland’s request for technical assistance.

The Worker member of South Africa, speaking also on behalf of the Worker members of Angola, Botswana, Democratic Republic of the Congo, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Zambia and Zimbabwe, stated that the Swazi Ministry of Labour had described the formation of TUCOSWA in January 2012 as an “important milestone in the history of industrial relations”. However, when TUCOSWA had started to call for genuine democratic elections, it had been deregistered and its activities prohibited. The Government had considered, suddenly, that there was no law that allowed for the registration of union federations – a right guaranteed by the Convention. This decision had been confirmed by the industrial court on 26 February 2013. When TUCOSWA went to the High Court to challenge the decision, its lawyer had been arrested days before the scheduled hearing. The Government was clearly aware that it was in violation of the Convention, and its statements were no longer credible. Although it had issued General Notice No. 56, with the stated aim of ensuring that union federations were able to exercise their rights and participate in tripartite bodies, this had not yielded any results to date. The Government did indeed permit TUCOSWA to participate in tripartite bodies, but its opinion on important topics, such as the reform of the IRA, was largely ignored. Moreover, the Government had intensified its attacks on workers’ rights. Unions in numerous sectors had decided to merge in September 2013 to form ATUSWA. Prior to its launching congress, the union had requested registration, which had been denied up to the present, with the Government putting forward various reasons that were far removed from normal practice. Even during the era of apartheid in South Africa, trade unions and federations had been registered and free to operate. Trade union rights were human rights.

The Government member of Greece, speaking on behalf of the European Union (EU) and its Member States, as well as Turkey, The former Yugoslav Republic of Macedonia, Montenegro, Iceland, Serbia, Albania, Norway and the Republic of Moldova, stated that the EU attached importance to the rights of freedom of expression, opinion, assembly and association, without which democracy could not exist. She wished to recall the commitment made by Swaziland under the Cotonou Agreement – the framework for Swaziland's cooperation with the EU – to respect democracy, the rule of law and human rights principles which included freedom of association. Compliance with the Convention was essential in this respect. The case had been discussed by the Committee several times over the past decade. The EU was very concerned by recent developments in Swaziland that infringed on the rights of freedom of expression, opinion, assembly and association. Considering that the arrest of political activists and trade unionists on 1 May 2014, as well as the arrest and detention of human rights lawyer, Thulani Maseko and journalist Bheki Makhubu, constituted clear infringements, the EU called on the Government to respect these rights at all times. Noting that the Committee of Experts had requested the Government to take all necessary steps, including legislative measures, to proceed with the registration of TUCOSWA, the EU asked the Government to urgently amend the IRA so as to provide for that federation's registration and to urgently take forward this legislation, ensuring that it was in line with the Convention. Noting also that the Committee of Experts had highlighted several legal acts for their non-conformity with the Convention, the EU urged the Government to make sure that its legislation was fully compliant with the Convention. While appreciating that a high-level ILO fact-finding mission had been able to visit Swaziland in 2014, the EU expressed the hope that its results would be taken into consideration to produce tangible progress in all pending issues. It called on the Government to cooperate with the ILO and to respond to the requests of the Committee of Experts. The EU also urged the Government to avail itself of ILO technical assistance and expressed its continued readiness to cooperate with the Government to promote the implementation of fundamental rights.

The Worker member of Angola expressed grave concern that the Government had failed to meet its commitments made in 2013. In Swaziland, workers were harassed and intimidated with impunity. In March 2013, police had violently put an end to a meeting held on the anniversary of the founding of TUCOSWA, the only federation that brought together unions from all sectors in Swaziland. TUCOSWA remained unregistered, against workers’ wishes and against international legal instruments that promoted and protected freedom of association and the right to organize. On 6 September 2013, police had abruptly ended a Global Inquiry Panel that had been organized by TUCOSWA with the aim of hearing workers’ testimonies about conditions of work in Swaziland. While this was happening, the offices of TUCOSWA were raided by the armed police. On 5 September 2013, the Royal Police had put the Secretary-General of TUCOSWA, Mr Ncongwane, under house arrest, allegedly for taking charge of logistical arrangements for the Global Inquiry Panel. On the same day, trade union officials and other delegates arriving in Swaziland for the event had been detained by police upon their arrival and instructed to leave the country the following day. The Government had withdrawn the IRA amendment bill from Parliament. This action made it clear that the Government had no intention of recognizing or registering workers’ and employers’ federations in line with the commitment it had made to the Committee in June 2013. In light of the lack of progress it had made, she requested that the Committee include Swaziland in a special paragraph of its General Report.

The Government member of Morocco thanked the Government representative for the information supplied in response to the Committee of Experts’ comments on the exercise of freedom of association, the registration of workers’ organizations and a number of parliamentary bills. The Convention was difficult to implement because of constantly evolving industrial relations and required the adoption of regulations and institutional measures. According to the Government, considerable progress had been made, particularly with regard to the IRA amendment bill, the Public Service Bill, amendments to the Suppression of Terrorism Act and the efforts to promote social dialogue and tripartite consultation. The adoption of those measures testified to the Government’s determination to bring national legislation and practice in line with the Convention. He therefore proposed that the Government’s efforts be endorsed and that it be given time to pursue those efforts and to address the issues that were still outstanding.

The Employer member of Zimbabwe expressed his solidarity with the Employer member of Swaziland. He acknowledged that the Government had not kept its word and still had to complete what it had undertaken to achieve. The Government representative had been very eloquent in presenting its accomplishments and the reasons for which other matters had not been addressed. The bottom line was, however, that the registration of workers’ and employers’ federations was critical – at present it was the workers’ federation that was denied registration, in the future it could be the employers’ federation. Moreover, the placing of criminal and civil liability on individuals had an intimidating effect. While acknowledging the unique circumstances of Swaziland, the speaker underlined that the Government had been aware of the requirements when joining the ILO and ratifying the Convention. According to an African saying, when two elephants fought, it was the grass that got hurt – this was to illustrate that the situation between the Government on the one side, and one or the other or both social partners on the other side, was negatively affecting the national economy and thus the well-being of the population. The conclusions of the Committee should therefore be unequivocal as to the need for the Government to honour its commitments and the Committee should expect no less.

The Government member of Zimbabwe urged the Government and its social partners to avail themselves of the ILO’s technical assistance in order to resolve the outstanding issues that had been raised by the Committee of Experts. It had been pleased to note that the Government of Swaziland was cooperating with the ILO supervisory bodies. The ILO was encouraged to continue supporting the efforts made by providing the much needed technical support. It was recalled that, if nurtured, social dialogue at the national level could provide a platform to collectively deal with socio-economic issues. Investing and strengthening social dialogue became one of the ILO’s entry points, in its endeavour to improve labour markets in member States.

The Worker member of the United Kingdom said that Swaziland’s failure to respect the Convention was long-standing. Freedom of association and trade union activity had been restricted both in law and in practice, often with severe and violent consequences for trade unionists. The Public Order Act and the Suppression of Terrorism Act were used to silence dissidence and in recent months the number of arrests of those criticizing the regime had increased. The King had proclaimed Swaziland a monarchical democracy. It was not, however, a democracy, as there was a ban on political parties, a restriction on political information and the people of Swaziland could not participate meaningfully in organized political activity. Legislative and judicial powers were all vested in the King which had been consolidated by the revised Constitution of 2005. The State encroached on all civil and political rights and freedoms. The fact that trade unionists were brought before the courts for breach of laws, such as the Public Order Act, was a breach of ILO standards. The judiciary was not independent. Two senior members of the justice system had been dismissed; the first for allegedly criticizing the King and the second for refusing to support the dismissal of his colleague. A high-level ILO mission had visited Swaziland but no changes to the law had been made. Trade and other agreements with partners, such as the European Union, required that respect for international commitments, including freedom of association and freedom of assembly and speech, were met.

The Government member of Botswana said that freedom of association and the right of workers and employers to organize were preconditions for meaningful social dialogue and collective bargaining. Countries voluntarily ratified Conventions that promoted these principles but, on occasion, circumstances arose that undermined intentions. Some progress had been made towards compliance with the Convention, including the drafting and tabling of the Industrial Relations (Amendment) Bill in Parliament. Although it had not been adopted, these efforts bore testimony to the Government’s commitment. Challenges had been encountered in the process of amending the Industrial Relations Act, which pointed to the need for capacity building to ensure effective social dialogue on a variety of matters, including the obligations arising from the Convention. It was hoped that collaboration with the ILO would assist Swaziland in overcoming the challenges it was facing in this regard. In the light of the meaningful efforts made by Swaziland, the speaker requested that it be granted additional time to complete its work.

The Worker member of the United States referred to the previous comments made by the Committee urging the Government to amend its legislation and to the high-level ILO fact-finding mission which had visited Swaziland in January 2014 which reported that no measurable progress had been made toward amending the problematic legislation. The speaker also referred to the African Growth and Opportunity Act which provided for the “protection of internationally recognized worker rights, including the right of association and the right to organize and bargain collectively”. Swaziland’s laws had to be amended by 15 May 2014 to ensure continued eligibility for trade benefits under the Act; another deadline that had not been respected. The speaker referred to some of the legislative issues raised by the ILO supervisory bodies over the past decade that had still not been resolved, including with regard to the Industrial Relations Act, the Public Order Act and the 1973 Proclamation. Prison staff were still legally excluded from the right to establish or join unions and a bill proposed in 2012 to address the issue was no longer being discussed. Moreover, the Government had recently re-introduced the Public Service Bill, prior to consultation with the social partners. If passed, this law would permit the termination of public sector workers for making political statements, limit the subjects public sector workers could negotiate, and provide that these workers had no access to grievance processes. In conclusion, there was much work needed for the Government to bring its labour laws into compliance with the Convention. The speaker therefore urged the Government to cooperate with the ILO in order to complete those reforms.

The Government member of South Sudan stated that the Government had shown its strong political will towards ensuring compliance with the Convention. However, due to circumstances beyond its control, such as the dissolution of Parliament in July 2013 which was reinstated in February 2014, the whole process was delayed. The Committee of Experts was called upon to take note of the progress made so far. In addition, the ILO was requested to provide its technical assistance to the Government, in order to speed up the legislative reform process undertaken. The speaker invited the Government to continue its negotiations with the social partners in order to prevent further delays.

The Worker member of Nigeria said that workers and citizens could not exercise their rights on freedom of association, assembly and participation in democratic processes. The Government had continued to wilfully and arbitrarily circumvent the application of the Convention and other similar instruments, thus failing to deliver on the promises it had made. There were a number of areas of concern. TUCOSWA, a legitimate trade union, was banned. The police and other state security agencies continued to harass and intimidate union leaders. Four workers had been arrested and detained for wearing T-shirts that allegedly belonged to a political party. A student, who had joined his parents and co-workers to celebrate May Day, was detained. Associating with workers was considered a serious crime in Swaziland. Trade union activists had been forcefully prevented from participating in legitimate trade union activities and TUCOSWA’s lawyer had been in detention for having expressed an opinion on the arrest of a trade unionist from one of TUCOSWA’s affiliates. The treatment received by TUCOSWA was in breach of Swaziland’s Constitution.

The Government member of the United States stated that the situation of freedom of association and trade union rights in Swaziland was a matter of grave concern to the United States. The situation had been followed closely for several years, particularly in the context of Swaziland’s continued eligibility for trade preferences under the African Growth and Opportunity Act. The United States Government fully endorsed the recommendations of the ILO supervisory bodies regarding Swaziland’s application of the Convention, as well as the technical advice that the ILO had provided to the Government with a view to implementing those recommendations. Her Government was concerned by the lack of concrete, tangible progress to date; these issues had been pending for a very long time, some for over a decade. The speaker was pleased that the Government had accepted a high-level ILO fact-finding mission in January 2014. Nonetheless, she deeply regretted that TUCOSWA was still not registered. It was imperative that TUCOSWA be able to effectively exercise all of its trade union rights without interference or reprisal. It was equally important that employers’ organizations were registered and able to fully represent their members’ interests. Legislative omission that had resulted in the de-registration of workers’ and employers’ organizations, and the Government of Swaziland’s subsequent lack of meaningful recognition pursuant to its General Notice, had had serious consequences for genuine freedom of association and meaningful tripartite social dialogue in Swaziland. The speaker urged the Government to take the necessary measures to ensure that TUCOSWA and other workers’ and employers’ organizations were registered without further delay. The Government was also urged to take all of the measures recommended by the ILO supervisory bodies with regard to legislative amendments and their effective implementation. Moreover, she urged the Government to implement a Code of Good Practice for managing industrial and protest actions. In this regard, she called on the Government to cooperate closely with the ILO.

An observer representing the International Transport Workers’ Federation (ITF) indicated that in 2014, the ITF had sent a fact-finding mission to Swaziland to investigate anti-union measures taken by the authorities against the Swaziland Transport and Allied Workers’ Union (STAWU). In addition to the Public Order Act used to target trade unionists, including the STAWU, another law had also been used to that end. Five STAWU union leaders, including the Secretary-General, had been served notice of prosecution under the Road Traffic Act of 2007 for holding a union gathering in the airport car park. Although this law was supposed to cover offences on public highways, it had been applied to the airport car park – another way in which statutory instruments were creatively used to suppress unions in Swaziland. Furthermore, in 2014, the Civil Aviation Authority had submitted an application to the Government’s Essential Services Committee requesting that a range of airport services be classified as essential services. This would bring airport staff under specific legislation restricting their employment and trade union rights, and would be a step backwards in the application of the Convention. The speaker also referred to their visit of STAWU’s legal officer, Basil Thwala, in prison. He had been arrested following a demonstration in July 2012 and had been charged and convicted for offences under both the Road Traffic Act and the Public Order Act. Although he was initially granted bail, it was later revoked by the High Court of Swaziland allegedly on the ground that he had breached his bail conditions. No witnesses were called before the court to verify this allegation and Mr Thwala himself had not been in court when his bail was revoked. Mr Thwala was then sentenced to two years of imprisonment. Even though he had lodged an appeal two months after being convicted, his appeal, filed on a certificate of urgency, was never dealt with. Mr Thwala was released in 2014 after serving his full sentence. ITF’s mission had questioned the independence of the judiciary in both Mr Thwala’s case and that of the STAWU leaders. STAWU’s plight showed the Government’s non-compliance with the Convention. He urged the Government to amend the legal texts that had been subject to scrutiny. Moreover, the Government should be asked to report on the Road Traffic Act and its misuse aimed at targeting legitimate activities of the trade unionist.

The Government member of Egypt stated that the Government had taken a series of measures to fully implement the provisions of the Convention despite the difficulties the Government had faced, especially during the national elections which were held after the dissolution of Parliament in July 2013. These difficulties had delayed the adoption of legislative measures that would allow the provisions of the Convention to be implemented. The Government had demonstrated its full commitment to making the necessary amendments, particularly with regard to the registration of trade unions. In conclusion, the speaker asked the Committee to grant the Government additional time to enable it to take the necessary measures and bring national legislation in line with the requirements of the Convention. In this regard, he supported ILO technical assistance for the Government.

The Government representative thanked all the members of the Committee for their positive criticism and wished to assure the Committee that Swaziland was committed and was tirelessly working on the pending issues. Given the required time and technical assistance, the Government would be able to report tangible results at the Committee’s next meeting. In response to the issues raised during the discussion, the Government representative stated that all the relevant information had been provided with respect to the 1973 Proclamation and clarified that it was only on this specific issue that further examination and supervision did not appear to be required. With respect to the new allegations of non-compliance raised during the discussion, the Government representative asked that the normal process be used, namely that these complaints of non-compliance be channelled through the government structure in order to afford the Government the opportunity to provide information or a report on the new issues raised. Some of the issues raised had been a distortion of the facts. The speaker added that TUCOSWA was not banned in Swaziland and enjoyed the right to organize and to meet and the right of freedom of expression. TUCOSWA celebrated May Day in 2014 and had invited representatives of the Government to attend the celebration. This was proof that their relationship was not as it had been portrayed. With respect to the Bill amending the Industrial Relations Act (Bill No. 14 of 2013), it had not been the Government who had withdrawn the Bill from Parliament but a Parliamentary Committee. A bill could not be promulgated overnight and the Government therefore asked the Committee for some time in order to move forward with the process that had already started. The Government representative requested the ILO’s technical assistance to help resolve the pending issues and stated that the Government would report on solid results at the Committee’s next meeting.

The Employer members thanked the Government for the information submitted. Some measures had been taken but highlighted that there was a lack of concrete progress with regard to this case. They recalled that the Committee did not address the right to strike in this case as the employers did not agree that there was a right to strike recognized in the Convention. The Government was urged to implement in law and in practice real change that would see the Government’s legislation come into compliance with the Convention. Priority should be given to establishing a fast-track process to allow the immediate registration of workers’ and employers’ organizations and federations, including the immediate registration of TUCOSWA which had to be dealt with as a matter of urgency. Once organizations were registered, the Government could turn to consulting with the social partners in order to draw up a timetable to finalize the revision of the outstanding legal texts that had been discussed. Revision of legislation presented challenges but with the assistance of the ILO and in consultation with the social partners it would be possible to deal with those challenges. Given the Government’s willingness to achieve progress, the Employer members expected that the recommendations would be taken seriously and given priority.

The Worker members expressed the view that the evidence provided was irrefutable and proof enough of the systematic attacks on the workers’ right to establish and join trade unions freely. The Government was trying to prevent the creation of TUCOSWA and ATUSWA by refusing to register them and by prohibiting them from engaging in trade union activities. Freedom of movement and expression of the leaders and members of the unions was limited and they risked criminal charges and prison if they denounced the Government’s repressive tactics. The police and security forces had been watching the workers closely and, citing abusive legislation that the Government refused to change, had threatened to use force if they tried to assert their rights. On several occasions the Government had pledged to stick to a timetable of reforms, but had failed to do so. The ILO mission that had recently visited the country had not been able to record any progress. The Worker members felt that they could not allow the Government any more time and reiterated their demands: the Government must register TUCOSWA and ATUSWA immediately and ensure the full exercise of their rights under the Convention and national legislation, with particular reference to the IRA. The Government must release Thulani Maseko immediately and abandon the legal proceedings regarding his freedom of expression and legitimate trade union activities, and take urgent steps to institute an independent judiciary; the Government must provide the police and security forces with relevant information and hold them responsible for any violent intervention in peaceful and legitimate trade union activities; the Government must immediately amend the IRA, the Correctional Services (Prison) Act, the Public Service Act, the Suppression of Terrorism Act and the Public Order Act so as to bring them into line with the Convention; the Government must initiate judiciary procedures conducive to a definitive Supreme Court ruling on the status of the provisions of the 1973 Proclamation. Given that the Government was persisting in its ways, the Worker members would use all the facilities available to them under the ILO Constitution. Considering the seriousness of the case, the Government’s systematic refusal to act for the past ten years and the complete absence of progress, the Worker members were in favour of the Committee’s conclusions being included in a special paragraph.

Individual Case (CAS) - Discussion: 2013, Publication: 102nd ILC session (2013)

A Government representative, thanked the social partners and the ILO for the support and encouragement the Government had received when dealing with the issues raised by the Committee of Experts. His Government was confident that the progress achieved demonstrated its commitment to complying with international labour standards both in law and practice. Accordingly, it was appropriate that this case be removed from the special paragraph. With regard to the issue of registration of federations, he stated that while the drafting of the Industrial Relations Act (IRA) of 2000 involved tripartite structures, an error of leaving out a provision for the registration of federations was made, resulting in a lacuna in the law. This lacuna was later discovered by the Attorney-General’s Office which had advised on an amendment to the Act. The advice of the Attorney-General’s Office was subsequently confirmed by the Industrial Court in Case No. 342/12. This lacuna did not only affect workers’ federations, but employers’ federations as well. Initially, the IRA had no provision for the registration of federations until the social partners, in developing the Act, had decided that in order for federations to be legitimate and operate in the country, they had to be registered. Hence, an unregistered federation would not be legitimate under the IRA. When the registration issue had come before the Industrial Court, the Court confirmed that in the current legislative scheme, there was no provision for the registration of federations. Noting that the Government had already started working on the IRA amendment, the Court encouraged the Attorney-General to prevail upon Parliament “to give the matter the urgency it deserve[d] in light of the country’s obligations under the various international Conventions”. Following this judgment, the parties had agreed to work together.

The speaker referred to a written response his Government had submitted in Case No. 2949, lodged by the Trade Union Congress of Swaziland (TUCOSWA) with the Committee on Freedom of Association, in which it had explained the reasons for the removal of the workers’ federation from the Register of Federations. The Committee on Freedom of Association had considered this case in March 2013 and on that occasion had suggested the amendment of the IRA so as to allow for the registration of federations. The Government, working together with the social partners, had taken concrete steps to comply with the Industrial Court directive and to address the recommendations of the Committee. In this regard, several consultative meetings between the Government, Worker and Employer representatives had been held. Following these consultations, the parties had agreed on the principles that would guide tripartite relations in the country. These principles, which were a product of consultation and consensus, had been published in the Government Gazette as General Notice No. 56 of 2013 (cited as Principles Guiding Tripartite Labour Relations between Swaziland Government, Workers and Employers Notice, 2013). They allowed for the restoration of all tripartite structures, collective bargaining and tripartite consultations. The speaker indicated that the Government had received a letter from TUCOSWA advising of its decision to resume participation in all tripartite structures. This demonstrated unequivocally the full resumption of the good relations between the Government and its social partners. Thus, upon the return of the tripartite delegation to Swaziland, a meeting of the Social Dialogue Committee would be called to develop a plan of action for the next 12 months. The Government had approved and published the amendments to the IRA to provide for the registration of federations, which had been prepared in consultation with the social partners and the ILO (Bill No. 14 of 2013). The Bill was now on its way to Parliament, where further inputs were required from all stakeholders.

In October 2010, the Government, in line with the recommendations of the Committee of Experts, had received a Tripartite High-level Mission, which investigated the country’s compliance with the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). A report of the High-level Mission, together with its recommendations, had been received in December 2010. In order to facilitate the implementation of the recommendations, the ILO had provided technical assistance to, among other things, review the selected legislation. The report from the ILO consultancy had been circulated among the social partners in January 2012 and had formed the agenda for meetings of the Social Dialogue Committee, scheduled for February and March 2012. However, these meetings had been cancelled at the request of workers. Following the High-level Mission, the Government had made some progress, but updates in this respect could not be provided, mainly due to the fact that tripartite consultations and social dialogue in the country had encountered serious challenges throughout 2012 and the first quarter of 2013, which resulted in the tripartite structures not being operational. However, now that the tripartite partners had agreed on working arrangements, the Government was of the view that all of the outstanding issues, as set out in the report of the Committee of Experts, would be attended to as a matter of urgency. Notwithstanding the challenges highlighted above, the Government had made progress on the following issues. The Public Service Bill had been resubmitted to the social partners for review and consideration. The Government stood ready to finalize the Bill in consultation with the social partners and the ILO. With regard to the determination of a minimum service in the sanitary services, the Government was confident that, with the restoration of relations with the social partners, this matter would be finalized before the end of 2013. A proposal to amend sections 40 and 97 of the IRA had been tabled before the Labour Advisory Board for consideration in 2012 and formed part of the agenda for the Social Dialogue Committee. The Government firmly hoped that the amendments would be effected. Moreover, a Bill (Correctional Services Bill) had been drafted and tabled before the National Steering Committee on Social Dialogue for its consideration and input in 2012. However, progress on this issue would be realised once the Committee resumed its business. The plan of action would give priority to all issues relating to freedom of association and collective bargaining. With regard to the King’s 1973 Proclamation, in the Government’s view, (given to the ILO and acknowledged in the 2013 Report of the Committee of Experts) there was no state of emergency in the country. Extensive information in this regard had been provided to the social partners. As proposed by the Committee of Experts, the Government would nevertheless convene a meeting with the social partners to discuss this issue and was confident that this would put the matter to rest. Furthermore, the Government had made a decision to amend the Public Order Act of 1963 and to adopt the Proposed Code of Good Practice. In this regard, the Attorney-General was making the necessary amendments in consultation with line ministries and other international organizations. The Government thanked the ILO and the social partners for developing a code/guideline to regulate the relationship between parties during protest action, demonstrations and other industrial action, as an interim measure, while the Public Order Act was being amended. It was necessary to finalize and adopt the code, which should continue to be a blueprint guiding relations in industrial action. The Government had also agreed to amend the Suppression of Terrorism Act, especially the definition of “terrorist” and, in this respect, the Attorney-General was working with the line ministries and international agencies concerned. The Government was committed to streamlining social dialogue activities. In 2012–13, two tripartite delegations had visited South Africa and Norway on study tours. These visits had enabled the team to benchmark mandates, governance structures and best practice for meaningful and effective social dialogue in Swaziland. The Government expressed its thanks and gratitude to the Governments and social partners of these two countries for imparting their experiences, sharing their knowledge and providing advice on good practice.

The speaker noted that May Day was a paid public holiday and that workers celebrated this day. As was the practice, the police meet with organizers of any public gathering in order to discuss, among other issues, logistics and security. The meetings between the organizers of May Day celebrations had been within the normal scope of work of the police. Noting the regrettable misunderstanding between the police and the organizers of the celebrations, the Government requested that it be allowed time to address this matter. The initial investigations indicated, however, that there had been no raids of TUCOSWA offices or house arrests; rather the police had invited TUCOSWA leadership for a brief discussion, which they had duly honoured. The Government nevertheless assured the Committee that such an incident would be avoided in the future once the provisions of the general notice were implemented; the code/guideline were approved to regulate the relationship between the parties during protest action, demonstrations and other industrial action; and the ILO facilitated further training for the Government, including the police and the social partners on various ILO Conventions and human rights instruments. The Government wished to reassure the Committee that the principles of freedom of association, as articulated in the Convention, would be fully adhered to. It hoped that as a member State of the ILO, it could continue relying on ILO technical assistance in this respect. He stressed that the case should be removed from the special paragraph.

The Worker members recalled that the Convention guaranteed the right of workers and employers to establish and to join organizations of their own choosing without previous authorization. Thus constituted, those organizations must be able to manage their affairs freely and could not be dissolved or suspended by administrative authority. Freedom of association was a human right and the precondition for healthy social dialogue – and hence for social peace. The Worker members expressed their concern at the trade union situation in Swaziland, where TUCOSWA, a merger of Swaziland’s three union federations (the Swaziland Federation of Trade Unions (SFTU), the Swaziland Federation of Labour (SFL) and the Swaziland National Association of Teachers (SNAT)) was no longer recognized by the Government and therefore liable to have its registration revoked, in violation of Article 5 of the Convention. The trade unions were currently up against a climate of extreme violence; trade union leaders were harassed, brutalized and arrested. During the 1 May 2013 celebrations for example, the police occupied TUCOSWA’s headquarters and arrested its President, Barnes Dlamini, and its Secretary-General, Mduduzi Gina. At the same time their colleagues Vincent Ncongwane, Secretary-General, Muzi Mhlanga, Second Deputy Secretary-General, and Jabulile Shiba, General Treasurer, were placed under house arrest. As a result, the planned demonstration and festivities had to be cancelled. Previously, on 12 April 2013, Wonder Mkhonza, Deputy Secretary-General of the Swaziland Processing, Refining and Allied Workers Union had been arrested for possession of political tracts. The Worker members recalled that the arrest of union officials and trade unionists, even briefly, because of their union membership or activities was contrary to the principles of freedom of association. Any deprivation of freedom of movement was an obstacle to the exercise of trade union rights and thus a serious violation of civil liberties.

The Worker members observed that the IRA violated the Convention as it did not allow union federations such as TUCOSWA to register. This had been confirmed by the courts in a decision handed down on 26 February 2013 which, in addition, ordered the Government and TUCOSWA to negotiate a solution to the federation’s registration. The Worker members stressed the Committee on Freedom of Association’s declaration that a ban on the registration of a trade union that had previously been legally recognized could not take effect until before the deadline for appealing against the decision had expired, or if a decision taken by a court of first instance had not yet been confirmed on appeal. Setting conditions for registration that were tantamount to requiring prior authorization from the public authorities to set up a trade union or for it to function was incontrovertibly a violation of the Convention. In practical terms, such a situation was liable to hinder severely the possibility of establishing a trade union and thereby constituted a denial of the right to do so without prior authorization. The administrative authorities should not be able to deny an organization registration simply because they considered that it might engage in activities that went beyond normal trade union matters. Respect for freedom of association was part and parcel of a democracy, and vice versa. The Worker members emphasized that, according to the principles embodied in the Convention, the public authorities must refrain from any form of intervention that might restrict the exercise of the right to establish and join trade unions. Yet several legal texts in force in Swaziland did not respect the principle of non-interference at all. Article 14 of the Constitution stipulated that peaceful assembly and association was inviolable, but, at the same time, article 25 provided that the principle could be restricted in the interest, inter alia, of public morality. Although the Committee on Freedom of Association had declared that the right to hold meetings was an essential component of freedom of association and that public authorities must refrain from any form of intervention that was liable to restrict that right, unless its exercise was such as to endanger public morality, reasons that were vaguely defined as involving public morality could not be deemed to be a threat to public order.

With regard to the public service, the Worker members recalled that a Bill was currently being discussed in the two chambers of Parliament but that it had not been adopted within the deadline and the procedure had had to begin all over again, which showed the advantage of the workers’ organizations being freely and broadly consulted during the preparation and implementation of legislation affecting their interests. The Worker members noted for several years that the Committee had been asking the Government to have the 1963 Public Order Act amended, yet the Government had still not supplied any information on steps it might have taken to ensure that the Act was not used to justify interference in union meetings or activities in support of union demands. As to the amendment of the legislation guaranteeing prison staff the right to organize in defence of their economic and social interests, the Minister of Justice and Constitutional Affairs had submitted the Correctional Services (Prison) Bill to the Social Dialogue Committee on 13 July 2011. Not being able to examine the Bill, however, the social Dialogue Committee passed it on to the Cabinet. The Cabinet, in turn, considering that the social partners should have a say in the drafting of the text, had transmitted it to the Labour Advisory Council in September 2012. The Worker members were worried that the Bill appeared to have been set aside.

The Worker members were also concerned about the situation in the education sector, where many teachers were currently employed on fixed-term contracts for several years consecutively. Collective bargaining in the sector was conducted through a joint negotiating forum, but the Government representatives were constantly obliged to refer back to the Minister, which meant that the negotiations never had any real impact. The measures to arrest and detain trade union leaders constituted a serious violation of the principle of freedom of association. The right to organize public meetings, including rallies, constituted an important aspect of trade union rights. The case had unfortunately been on the Committee’s agenda for far too long and there seemed to be no way of pressuring the Government to take appropriate action. The Committee should therefore adopt a firm conclusion.

The Employer members welcomed the information provided by the Government indicating that steps were being taken to deal with the registration of trade unions and to strengthen social dialogue. Although they considered that it was an extremely serious case, they perceived some progress from the information provided by the Government, which would have to be assessed by the Committee of Experts. The Committee of Experts had examined this case on 19 occasions and the Conference Committee had included this case in a special paragraph in 2009 and 2010. This case was also examined in 2011 when this Committee considered the conclusions and recommendations of the Tripartite High-level Mission that had visited the country in October 2010. The following three issues were considered in 2011: the violation of civil liberties; the interference in trade union activities; and the lack of social dialogue. On that occasion, the Employer members had already noted a change in the Government’s attitude. However, they considered that this change of attitude had to be confirmed by future actions and thus encouraged the Government to make use of ILO technical assistance. In 2011, the Committee concluded that as long as the legislation restricting freedom of association and basic civil liberties was in force, compliance with the Convention was not ensured. It thus requested the Government to intensify its efforts to institutionalize social dialogue and to provide a roadmap for the implementation of the long called-for measures. This year, the Committee of Experts’ observation dealt with the same three issues.

With regard to the Public Service Bill, noting the Government’s willingness to work with the social partners in order to enact the law, the Employer members encouraged the Government to provide information on the progress made and expressed the hope that it would be in full compliance with the Convention, and that it would include access to a complaints procedure with the possibility of judicial proceedings with enforcement authority. The Employer members expressed the hope that the Government would resume discussions with the social partners in the framework of the Social Dialogue Committee on the recommendations made by the ILO and that progress could be reported in the near future in this regard. In particular, the Employer members encouraged the Government to provide information on the outcome of the discussions carried out with the social partners on the status of the 1973 Proclamation, as well as on the amendment of the 1963 Public Order Act. They expressed the hope that the progress achieved during the last 12 months would continue and that the Government would pursue its work in cooperation with the ILO.

Regarding the determination of the minimum services in the sanitary services, the Employer members noted that the Committee of Experts had been requesting the Government to amend the IRA in order to recognize the right to strike in the sanitary services. In this respect, the Employer members reiterated their position that the Convention did not contain an explicit reference to the right to strike and recalled that their position had been established in detail during last year’s discussion on the General Report and General Survey. They continued to rely on this position. There was no consensus in this Committee concerning the fact that the right to strike was recognized in the Convention. Accordingly, they were of the view that the Committee of Experts should refrain in the future from requesting the Government to amend the IRA in order to recognize the right to strike in the sanitary services because this fell outside the scope of its mandate. This should not be construed as an indication that this was not an important case. The Government had to reply on many other issues and the Employer members hoped that they would be able to note progress in the next months and that the Government would continue to cooperate with the ILO.

The Worker member of Swaziland recalled that the national Constitution, adopted in 2005, contained a Bill of Rights, which guaranteed freedom of association. However, the Government had continued to violate these rights flagrantly. TUCOSWA had been registered on 25 January 2012, following a consultative process with the Government. It was the only national centre, a product of the merging of the SFTU and the SFL, which had been dissolved in accordance with their constitutions and the national laws, paving the way for the establishment of the new entity. The coming into being of TUCOSWA and the unification of the labour movement had been commended by the Government. However, the Government had deregistered TUCOSWA, allegedly because there was no provision in the IRA for the registration and merging of federations. This was despite the fact that sections 32 and 41 of the Act provided for the existence, regulation and merging of federations. Consequently, workers were not represented within the industrial sphere, in particular in the tripartite structures. Social dialogue was virtually dead in the country. This was a clear violation of Conventions Nos 87 and 98. As a result, tripartism and social dialogue were non-functional; all the federation’s activities had been banned. Furthermore, on 1 May 2012, the police had brutally confiscated all of the Federation’s belongings and arrested and harassed trade union leaders and their members. On 1 May 2013, the police had once again removed and confiscated the Federation’s belongings, brutally arrested and confined, detained and kept under house arrest the TUCOSWA leadership and raided its offices. The commemoration of TUCOSWA’s anniversary on 9 March 2013, had been brutally stopped by a battalion of military and police. The shop stewards meeting for the Federation had also been brutally stopped on 19 April 2013. In an attempt to legalize the unlawful act of deregistration of TUCOSWA, the Government had approached the Industrial Court for an order declaring that TUCOSWA was not a federation in terms of the IRA. The Court had ruled in total disregard of ILO standards and the spirit of section 4 of the IRA, as well as an earlier judgment of the Industrial Court of Appeal, which held that ILO Conventions were part of the labour laws of Swaziland. The Government’s misleading interpretation of the word “organization” in considering that it excluded “federations” was contrary to Article 10 of the Convention. Despite a directive of the Court ordering the parties to agree on a method of operation, the Government had refused to sign the memorandum of agreement which had been agreed to by the parties on 24 May 2013. It was the Union’s understanding that this agreement was the modus operandi as directed by the Court. However, acting in bad faith, the Government unilaterally produced a general notice. Ever since the Government had discovered the alleged lacuna in the Act in 2011, it had not taken any steps to remedy the defect. Notwithstanding the encouragement by the Court in February 2013 that the Government should facilitate the legislative process as a matter of urgency, it had failed to do so until 23 May 2013 when the purported amendments had been published in the Government Gazette. The mere publication did not mean that the amendment was before Parliament. As of now, there had been no prospects of the Bill, whether agreed by the parties or not, being passed into law, given that Parliament was probably bound to be dissolved by the end of June, giving way to national parliamentary elections. It was important to stress that the Bill had been unilaterally crafted by the Government and was not a product of consultation. As a result, the Bill contained provisions which were in conflict with the provisions of the Convention.

The King’s Proclamation was still part of the laws of Swaziland as it had not been expressly repealed by the King, as required by the same Proclamation. It could therefore not be argued that, by virtue of section 2 of the Constitution, the Proclamation had “died a natural death”. He recalled that the Proclamation violated the workers’ fundamental rights and civil liberties and that the ILO consultancy had recommended that the Government institute legal proceedings to obtain a definitive ruling from the country’s highest court as to the status of provisions of the Proclamation. The Government had so far ignored and rejected this recommendation. The Government had also ignored the recommendation to amend the 1963 Public Order Act so as to ensure that legitimate and peaceful trade union activities could take place without interference. Instead, the Government used the police and the army to prevent workers from engaging in legitimate and peaceful activities. Furthermore, all attempts to finalize the Code of Practice referred to by the Government had failed because it had refused to recognize the workers’ representatives in the tripartite structures. In view of the above, it was clear that the situation in Swaziland must be thoroughly investigated.

The Employer member of Swaziland referred to the situation faced by workers’ and employers’ federations in the country, which, though still difficult, had improved. She indicated that the IRA, while defining what a federation was, did not make provisions for their registration. As a consequence, the registration of TUCOSWA, which was the result of a merging of workers’ federations, was considered by the Industrial Court as null and void. This was confirmed by subsequent judicial decisions. According to the speaker, the rights of workers, which were guaranteed by the Constitution, could not be restricted to unions, while excluding federations. As a result, none of the following tripartite statutory boards and committees could function: the National Steering Committee on Social Dialogue, the Labour Advisory Board and the Conciliation, Mediation and Arbitration Commission. Several meetings had been carried out and a mission from the Southern Africa Trade Union Co-ordination Council (SATUCC) had taken place in order to overcome the impasse. Finally, the parties had agreed on a modus operandi and the Government had issued a general notice where it recognised the workers’ and employers’ federations to exist “in terms of their own Constitutions”. Furthermore, the Government issued the Industrial Relation (Amendment) Bill No. 14 of 2013, which provided for the registration of federations. However, as long as this Bill was not approved, the decision of the Court prevailed.

In respect of the May Day reported house arrests, the speaker indicated that following the Court decision, workers’ federations could not participate in the celebrations and that the leaders had been reportedly placed under house arrest. She considered that this was a devastating assault on freedom of association and assembly. Concerning the right to strike, the speaker recalled that the International Organisation of Employers (IOE) had indicated over the years that the right to strike was not mentioned in the Convention. With respect to the Public Service Bill, she indicated that it had been debated by the Labour Advisory Board, that the social partners had had the occasion to point out some provisions as unconstitutional and that ILO assistance was sought in this respect. The Correctional Services (Prison) Bill, which provided organizational rights to prison staff, was on the agenda of the Labour Advisory Board which had recently finalized the Employment Bill 2012. The Code of Good Practices on Managing Industrial and Protest Action was awaiting adoption by the National Steering Committee on Social Dialogue, after having been discussed with the social partners and the police service in order to define the role of the police in protests and industrial actions. Regarding the report requested to assist the Government in aligning its laws with ILO Conventions, which examined the 1973 Proclamation, the 1963 Public Order Act and the 2011 Suppression of Terrorism Act, the speaker indicated that it was tabled in a meeting of the National Steering Committee on Social Dialogue. She noted that the progress achieved justified that her country be removed from the special paragraph and that all technical assistance be provided to ensure that the respect of fundamental rights was balanced with economic growth.

The Worker member of the United Kingdom pointed out that in Swaziland, expressing support for TUCOSWA was proscribed and that being associated with, or mentioning this federation could be the basis for an arrest. She questioned the Government’s stated intention to bring the IRA, the 1973 Proclamation, the 1963 Public Order Act and other legislative acts into conformity with the Convention and refuted the Government’s suggestion that the social partners were somewhat responsible for the delay of consultations in this regard. The truth was very different: TUCOSWA had been registered for only two months in 2012 before it had announced a boycott of the election; the discussions referred to by the Government had been arranged for a time known to be impossible for the Federation to participate; the deregistration of the Federation in April 2012 had ended any chance of discussion with a view to changing the legislation. The Industrial Court had decided that the Government should change the law so as to allow TUCOSWA to operate. If the Government failed to do this immediately, it would show that the Government was still far from being ready to end its persecution and harassment of trade unionists and that further urgent action must be taken to guarantee fundamental trade union and human rights.

The Worker member of Norway, referring also to the trade unions of other Nordic countries, observed that the Committee of Experts had once again noted the continuation of a series of long-standing violations of the Convention in Swaziland, concerning which the Government had already appeared before the Committee on numerous occasions. The Government appeared to be engaged in a campaign against trade unions and had failed to register the new representative trade union, TUCOSWA, which it regarded as illegal, even though it had been entered in the tax register. Examples of the continued repression of activities by trade unions and civil society included the prevention by the police, without a court order, of a prayer session to commemorate the first anniversary of TUCOSWA. A peaceful demonstration and a march had recently been met with police violence, resulting in the shooting of several demonstrators. The 2013 May Day celebrations of TUCOSWA had also been repressed, with the trade union leaders being placed under house arrest. It was clear that systematic violations were continuing of the right to organize, to assembly and to peaceful protest, which were protected by the Convention and the 1998 ILO Declaration on Fundamental Principles and Rights at Work.

The Government member of the United States stated that her Government had been following the case closely for several years, particularly in the context of Swaziland’s continued eligibility for trade preferences under the African Growth and Opportunity Act. The long-standing case essentially comprised three themes: violation of civil liberties, interference in trade union affairs, and lack of effective social dialogue. While acknowledging that some steps had been taken, much still remained to be done to give effect to the recommendations of the ILO supervisory bodies which, together with the technical advice and assistance provided, offered a detailed outline for bringing national law and practice into compliance with the Convention. In that regard, she expressed concern at the continued interference in peaceful public gatherings, including the detention of trade union leaders during the 2013 May Day celebration. Moreover, many legislative texts and orders permitted the authorities to repress or penalize legitimate trade union activities, and there was a continued absence of legislation to recognize labour federations, as demonstrated by the deregistration of TUCOSWA in April 2012. She also noted the continued lack of a robust and institutionalized process for genuine and meaningful social dialogue. As the Government had frequently expressed its commitment to ensuring compliance with the Convention, her Government urged it to promote and protect freedom of association and of assembly, as outlined in ILO Conventions and the national Constitution. The Government should continue to work closely with the ILO to carry out all of the legislative reforms recommended by the Committee of Experts, and to implement those measures with a rigorous system of labour inspection, an administrative complaints process and an independent judiciary with enforcement authority. With reference to TUCOSWA, and noting the Government’s efforts to engage with the federation temporarily under a general notice, her Government urged it to expedite efforts to adopt legislation recognizing the right of labour federations to exist and operate fully under the Industrial Relations Act. Her Government hoped that it would very soon be possible to record concrete and sustainable progress towards full conformity with the letter and spirit of the Convention.

The Government member of Norway, also speaking on behalf of the Government members of Denmark, Finland, Iceland and Sweden, stated that, although action had been taken to give effect to the rights of freedom of expression, organization and association in the Constitution, the social partners had indicated that those rights were not effective in practice. There appeared to be a general lack of progress in giving effect to the constitutional provisions on those matters, despite the present case being examined by the Committee on numerous occasions. They therefore urged the Government to remove all obstacles to the enjoyment in practice of the rights set out in the Convention. The Government should also take action to comply with the request by the Committee of Experts that it take all necessary steps to proceed to the registration of TUCOSWA, including legislative measures if necessary. In that respect, they noted the proposal to amend the IRA and recalled that the Committee of Experts had highlighted several legislative problems, including those relating to the 1963 Public Order Act. They therefore urged the Government to ensure that all its legislation was in conformity with the Convention and to avail itself of ILO technical assistance for that purpose.

The Worker member of Nigeria emphasized that the systematic and consistent violations of the rights of workers, which had been examined by the Committee on numerous occasions, were growing worse than ever and had become entrenched in Government action, with administrative and security measures being used to trample upon fundamental and statutory rights. In particular, the Government and the security agencies had aggressively augmented their attacks against the workers, their organizations, leaders and activities. In March 2013, the workers in the country had been forcibly prevented from holding a thanksgiving prayer meeting to commemorate the first anniversary of TUCOSWA. Earlier, in February, the police had used force to prevent the holding of a prayer session by civil society organizations to address the deterioration in the national socio-economic situation. In so doing, the police had disregarded the national Constitution, which guaranteed the rights of association, assembly and religion. In April, civil society organizations had once again been prevented from holding a session to discuss the state of democracy and human rights in the country following 40 years of the state of emergency. The authorities did not hide their determination to clamp down on the right of workers to assemble freely and independently, and were treating TUCOSWA as an illegitimate organization, in contradiction with the latest judicial ruling on its registration. Examples of anti-trade union repression included the action taken against the May Day celebration, which had led to ten trade union leaders being placed under house arrest and the detention of workers wearing TUCOSWA T‑shirts. Wonder Mkhonza, Secretary-General of the Swaziland Processing, Refining and Allied Workers Union (SPRAWU), had recently been granted bail, after over 45 days in jail, as a result of a global campaign launched out of fear for his physical safety. It should be recalled that Sipho Jele, a trade union activist, had died in a police cell in 2010 in similar circumstances. It had also been recently reported by the media that the Prime Minister had instructed the heads of parastatal institutions not to recognize trade unions affiliated to TUCOSWA. The Committee should therefore take due note of the ceaseless attacks by the Government on democratic and civil liberties with a view to defending and protecting the abused and harassed workers.

The Government member of Zambia stated that her Government commended the Government on the progress made in redressing the core issues that had led to the stand-off between the Government and the social partners. Her Government encouraged the Government to take decisive steps, through a consultative process, to adapt the legal framework to allow for the registration of trade union federations. It should also following the principles of the promotion of tripartism, which would be vital for continued progress at the national level. Her Government commended the ILO for the technical and other support that had been provided to Swaziland. Her Government hoped that the Government would make further progress in putting in place the necessary measures to resolve the other outstanding issues and in ensuring the effective implementation of the legal measures that had been adopted.

The Worker member of Brazil expressed the solidarity and indignation of Brazilian workers. In practice, implementing a democracy was directly linked to the principle of freedom of association. In Swaziland, there was a climate of police violence and persecution against trade unionists and union leaders that was incompatible with both freedom of association and democracy. In Brazil, workers had experienced persecution, having lived through over 20 years of dictatorship. Possibly the best example of the parallel and interdependent growth of democracy and freedom of association in Brazil had been the election of a trade unionist as President. Today, the workers of Brazil were organizing events in 27 of the federal states against a Bill that would reduce rights through flexibility and increase outsourcing. He referred to his own country in order to provide an historical context to illustrate how violations of the rights enshrined in the Convention ended up creating barriers to the development of society by limiting and criminalizing social movements. The violations of the rights of workers in Swaziland were outrageous and it was imperative that the requisite measures were taken to address them.

The Government member of Zimbabwe stated that, having listened carefully to the information provided by all parties, his Government urged the Government and the social partners to continue their engagement in good faith with a view to dealing with the issues under discussion. The Office was also called on to continue providing support to the Government and the social partners. He added that, within the context of the Southern African Development Community (SADC) Employment and Labour Sector, issues of this nature were under discussion in relation not only to Swaziland, but also other countries in the subregion as they moved towards economic integration as part of the efforts made to improve compliance with international labour standards. The discussions, which included workers and employers, were focussed on the need to harmonize labour laws and practices entailed by the process of economic integration.

The Worker member of the United States indicated that Swaziland was part of the Southern African Customs Union and the Common Market for Eastern and Southern Africa, both of which had trade agreements with the United States. It was also eligible for preferential trade benefits under the United States African Growth and Opportunity Act, which established the requirement for the countries concerned not to engage in violations of internationally recognized human rights and to cooperate in international efforts to eliminate violations of those rights, which included the right of association and the right to organize and bargain collectively. It was clear that the Government was utterly failing to protect those rights, and indeed was working to deny them to its citizens. The primary exports from Swaziland to the United States were textiles and apparel. Yet, it was reported that many textile workers were not even paid the national minimum wage, which varied between US$57 and US$81 a month. In addition, the right to freedom of association and to organize, through which working conditions could be improved, were severely restricted and workers who attempted to exercise those rights were faced by a harsh legal environment and often by severe and violent repression. National law required police consent and a permit from the municipal council to hold meetings, marches or demonstrations in a public place, but the authorities routinely withheld their consent for such events. The law also required the registration of unions, but granted far-reaching powers to the Government to determine eligibility for registration, and the decisions taken were not subject to judicial scrutiny. Employers were granted discretion under the law on whether or not to recognize labour organizations where fewer than 50 per cent of employees were members of the organization, while workers in many occupations, including the police and security forces, fire-fighters, health workers and many parts of the civil service, were prohibited from forming unions. The severe and violent repression of trade unionists by the police and the Government sent a clear message that attempts to organize would be met with harsh resistance. The Government therefore needed to cooperate with the ILO and undertake serious reform measures to meet its obligations under the Convention.

The Government member of Morocco stated that the measures adopted by the Government fell into two categories: legislative and regulatory; and promotional, through social dialogue. Respect for freedom of association in practice presupposed tripartite collaboration, the promotion of a culture of social dialogue and negotiation. As the Government had expressed its willingness to respect freedom of association, the Office should support it in the practical implementation of the Convention, especially as the Government acknowledged that there were gaps and shortcomings in the legislation. In addition, as the Government had stated its willingness to amend the legislation, to revise the Industrial Relations Act and to opt for tripartism, it was important that it should be given time to overcome the difficulties identified.

The Worker member of South Africa observed that the contribution made by South African workers to defeating apartheid and the development of multi-party constitutional democracy was well documented. Their recent wretched experiences had taught them that in the absence of pluralism in a manifestly discriminatory regime, civil liberties could easily be undermined. The people, working families and the Government of South Africa had therefore resolved to be involved and to contribute to the struggle against oppression anywhere. In that connection, he recalled that South Africa accounted for over 80 per cent of Swaziland’s trade. South African workers totally rejected a situation in which trade benefits derived from the efforts of workers were used to repress the rights of other workers. And yet, with the persistence of intimidation, harassment and the oppression of trade union rights, the Government remained obstinate and unyielding to offers of assistance to help reform and improve its democratic and human rights processes. The assistance offered by the South African Parliament and of interaction with the National Economic Development and Labour Council (NEDLAC) had been rebuffed and the Swazi Government had never demonstrated any genuine commitment to reform its law and practice with a view to improving respect for civil liberties. The ILO’s efforts to develop arrangements to promote the decent work agenda in the country had been frustrated by the Government. The situation with regard to civil liberties in the country was dire and deteriorating. It was clear that the Government wished to wear out progressive forces and voices of reason so that it could continue with business as usual. He therefore urged the Committee to stand up to those repressive practices and to remain firm in the defence and protection of civil liberties and human dignity.

The Government member of Kenya affirmed his Government’s commitment to freedom of association and noted the progress made in Swaziland, particularly in terms of institutional and legislative change. However, his Government appreciated that there were still some milestones to be covered and that challenges lay ahead. The Government was urged to continue engaging in dialogue with the social partners with a view to further consolidating the foundations for continuous consultation, participation and engagement.

The Government member of South Sudan stated the efforts that were being made by the Government to promote the participation of the social partners, the public and the Labour Advisory Board and ensure their input into legislative amendments. However, her Government urged the Government to adhere to its commitment to ensure compliance with the Convention. As reported by the Worker members, there appeared to be restrictions on freedom of association in the country. It was important for the Government to allow workers the opportunity to organize and to encourage social dialogue. Her Government also called on Swazi workers to acknowledge the efforts that were being made by the Government to address all the challenges and to work as a team to achieve compliance with the Convention. The ILO was also encouraged to continue providing technical support to the Government.

The Government representative thanked all the speakers, and particularly those who had acknowledged the efforts made by the social partners and the Government. In response to the issues raised, he indicated that the question of house arrests and the invasion of trade union offices was still under investigation. He added that, although Wonder Mkhonza was a trade union member, he had been detained and arrested for matters unrelated to his trade union activities. Sipho Jele had never been a trade union member, and indeed had never worked. Moreover, the reports that the Prime Minister had ordered employers not to deal with TUCOSWA affiliates was merely a media creation. In fact, the Prime Minister had referred to unions that were not recognized by law. He stated, with regard to the general notice, that a letter had been received from the Secretary-General of the TUCOSWA that it would resume participation in all tripartite structures. The suspension of those structures had been lifted. It should also be noted that Swaziland was engaged in cooperation with South Africa and other countries, including with NEDLAC, which had been contacted by a tripartite delegation to see how the social dialogue system worked in South Africa. It should be noted that no trade union in Swaziland was proscribed. However, his Government recognized that there was a gap in the IRA, and that action to remedy this gap would have to be accelerated. It should be noted that the amendment proposed had been confirmed by the Industrial Court, which included representation of employers and workers. He stated that progress was being made on the issues under discussion. The Public Service Bill, which had lapsed, was again before the social partners. A Correctional Services Bill had also been prepared, and the Government would inform the Committee of the progress made in that regard. The amendments to the Suppression of Terrorism Act would also be communicated to the Office when they had been prepared. His Government should be given the opportunity to continue the efforts that were being made, without being placed in a special paragraph of the Committee’s report, A report would be provided to the Committee of Experts on the progress achieved, and the Government undertook to work with the country’s employers and workers. His Government hoped that it would be possible to comply fully with the Convention, which would be important in developing the national economy and providing employment for the workers.

The Worker members recalled that in 2011 the Committee had urged the Government to intensify its efforts to institutionalize social dialogue in the long term at the various levels of government and to ensure a climate of democracy in which fundamental human rights were fully guaranteed. A schedule for the discussion of the issues raised by the Committee of Experts should also be adopted as soon as possible in consultation with the social partners and with ILO technical assistance, as well as a roadmap for the effective implementation of a series of measures that had long been identified. They included amending the Public Order Act of 1963 so that legitimate and peaceful union activity could be carried out without interference; receiving ILO technical assistance for police training and the drafting of guidelines to ensure observance of the fundamental rights established in the Convention; amending the Suppression of Terrorism Act so that it could not be used to restrict trade union activities; and placing the Public Service Bill on the agenda of the Steering Committee on Social Dialogue to ensure tripartite discussion before it was adopted. No measures had been implemented since the previous examination. The Committee should therefore adopt very firm conclusions and propose that the Government accept a high-level tripartite fact-finding mission to assess the issue of non-compliance with the Convention with the support of government officials and ILO experts, accompanied by representatives from the Bureau for Workers’ Activities (ACTRAV) and the Bureau for Employers’ Activities (ACT/EMP). The Committee should also ensure that urgent measures were taken to guarantee the establishment of an independent judiciary, without which respect for human rights in general and for freedom of association in particular could not be guaranteed. The Worker members considered that the gravity of the case justified its inclusion in a special paragraph of the Committee’s report.

The Employer members acknowledged the promising developments made by the Government. However, much still remained to be done to achieve full compliance with the Convention. The information provided by the Government showed that there was now a basis for expediting the work towards achieving compliance with the Convention in law and practice with ILO assistance. Efforts should be concentrated on helping the Government to focus its attention on addressing the legislative and practical issues identified in a meaningful manner. ILO technical assistance would be essential for progress to be made and the Employer members therefore called on the Government to continue its cooperation with the Office. They also supported the suggestion that a fact-finding mission should visit the country, consisting of ILO officials and representatives of ACT/EMP and ACTRAV. The Employer members hoped that the Committee’s conclusions would reflect their longstanding views on the right to strike under the Convention. They hoped that the Government would continue to build on the small steps that had been taken up to now to achieve compliance with the Convention and that social dialogue would be improved as part of its efforts to give full effect to the Convention.

Conclusions

The Committee took note of the oral information provided by the Government and the discussion that ensued.

The Committee noted the grave issues in this case concerning this fundamental Convention refer, in particular, to the revocation of the registration of the voluntarily unified Trade Union Congress of Swaziland (TUCOSWA) in April 2012 and the determination that the legislation left a lacuna concerning the registration of any federation of workers or employers; and the impact of the various legislative texts, including the 1963 Public Order Act, on the exercise of freedom of association rights.

The Committee welcomed the information provided by the Government on the publication of the Industrial Relations (Amendment) Bill aimed at providing a legislative framework in which federations of trade unions and of employers could be registered, as well as the principles guiding tripartite labour relations between the Swaziland Government, Workers and Employers, to which the Government asserted all social partners had agreed and which would enable the effective functioning of the tripartite structures in the country pending the adoption of the Industrial Relations Amendment Bill. The Committee also noted the Government’s statement that all pending legislative issues would be attended to within the framework of the relevant tripartite institutions as a matter of urgency, including the recommendations made by the ILO consultancy in relation to the 1973 King’s Proclamation, the 1963 Public Order Act and the Suppression of Terrorism Act. Finally, the Committee noted that the Government reiterated its commitment to observe and implement Convention No. 87 in respect of federations of workers and employers. The Government undertakes to give full updates by the next session of the Committee of Experts in 2013.

The Committee did not address the right to strike in this case as the employers do not agree that there is a right to strike recognized in Convention No. 87.

The Committee strongly urged the Government to immediately take the necessary steps to ensure that the social partners’ views were duly taken into account in the finalization of the Industrial Relations Amendment Bill and that it would be adopted without delay. It is expected that this action will enable all the social partners in the country to be recognized and registered under the law, in full conformity with the Convention. In the meantime, it also expected that the tripartite structures in the country would effectively function with the full participation of TUCOSWA, the Federation of Swazi Employers and Chamber of Commerce, and the Federation of the Swazi Business Community and that the Government would guarantee that these organizations could exercise their rights under the Convention and the Industrial Relations Act of 2000. The Committee further urged the Government to ensure that immediate, significant and concrete progress shall be made within the framework of the social dialogue mechanisms in the country in relation to the other pending matters on which it has been commenting for many years. Recalling the importance that it attaches to the basic civil liberties of freedom of expression and assembly for all workers’ and employers’ organizations, the Committee urged the Government to ensure full respect for these fundamental human rights and to pursue vigorously the training of police forces to this end. The Committee expected that the Government will adopt, in consultation with the social partners, a code of conduct relating to the application of the Public Order Act. The Committee further recalled the intrinsic link between freedom of association and democracy and the importance of an independent judiciary in order to guarantee full respect for these fundamental rights. The Committee called on the Government to accept a high-level ILO fact-finding mission to assess the tangible progress made on all of the abovementioned matters and requested that this information, as well as a detailed report from the Government, be transmitted to the Committee of Experts for examination at its next meeting this year.

The Worker members stated that the Government should immediately proceed to the registration of TUCOSWA and give full effect to all the rights that are recognized to it in the IRA.

Individual Case (CAS) - Discussion: 2011, Publication: 100th ILC session (2011)

The Government communicated the following information concerning the progress made on the recommendations by the ILO tripartite high-level mission (HLM), that had visited the country 25–28 October 2010.

A. Matters in progress

With respect to the National Steering Committee on Social Dialogue’s consideration to pursue the recommendation of the 2006 high-level mission to review the provisions of the Constitution in so far as they may have an impact on the Convention. The issue was placed on the agenda of the above Committee scheduled for 13 and 21 April 2011. These meetings had to be postponed due to a workers’ protest action on 12–15 April 2011. The issue will now be placed in the next scheduled meeting of the above Committee to be held on 13 July 2011.

With respect to the recommendation that the Government pass a formal decree or proclamation explicitly nullifying all provisions of the King’s Proclamation of 1973, during a social dialogue meeting held on 10 March 2011, the Minister of Justice and the Attorney General took part in the discussions with the social partners. The Attorney General would provide legal direction and guidance on how to address this recommendation. On 26 May 2011, the Minister of Justice and the Attorney General reported that the Cabinet reiterated its previous position that the King’s Proclamation of 1973 was automatically nullified by the coming into effect of the Constitution of 2005, as the supreme law of the country. Every law that was in conflict with the Constitution was automatically nullified by the coming into force of the Constitution. There were other legislations that also were nullified and it would not make sense only to single out the Proclamation at this stage. The Constitution stipulated the manner in which laws were passed. In terms of obtaining dispensation, laws were made by the King in Parliament. The Constitution allowed for Proclamations to declare a state of emergency. The country was currently undergoing law reforms, and had approached several international organizations including the Commonwealth, the European Union and the United Nations Development Programme for technical and financial assistance to conduct a legislative review and provide drafting expertise. Currently, the Commonwealth was assisting the country with the drafting of legislation to enable the Constitution to be fully functional. In view of the concerns and issues raised by the social partners and taking into consideration their implications for the economic development of the country, the Minister of Justice requested permission to go back to the Cabinet to further consult on the matter.

The ILO had been requested to carefully examine the Suppression of Terrorism Act, 2008, on the application of the Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and give expert advice on the areas that were offensive and might be used to intimidate. This Act was drafted in line with the provisions of the United Nations standards and with technical assistance from the European Union and was used in line with its objective to suppress all acts of terrorism. Still awaiting the ILO’s guidance and advice on the matter, as requested in the letter dated 30 March 2011. On 26 April 2011, during a consultative meeting with the Director of the ILO Office in Pretoria, the Director was again reminded about the matter.

The ILO had been requested by the Government, in letters dated 20 August 2010 and 30 March 2011, to give expert advice on the provisions and the impact of the Public Order Act, 1963, on the application of Conventions Nos 87 and 98. The ILO Office in Pretoria had been given copies of the Police Act and regulations to facilitate the drafting of guidelines on the conduct and responsibilities of the social partners during protest actions. During the consultative meeting of 26 April 2011 with the Director of the ILO Office in Pretoria, the matter was raised again. He made a proposal to have a workshop with the police, the Government, workers and employers on how to manage protest actions in the future. This workshop would be facilitated by the ILO on 27–28 June 2011. All parties had been consulted and encouraged to participate.

With respect to the agreement between the Government and social partners on a timetable for the finalization of the Prisons (Amendment) Bill, the Minister of Justice and the Attorney General attended the social dialogue meeting on 10 March 2011 and were expected to come back with a progress report. During the social dialogue meeting held on 26 May 2011, the Minister of Justice and the Attorney General reported that the above Bill would be presented to the social partners during the social dialogue meeting scheduled for 13 July 2011. The social partners were in agreement that the draft Bill would be submitted to the Labour Advisory Board before it was published as a Bill.

With respect to the recommendation that the Public Service Bill be placed on the agenda of the National Steering Committee on Social Dialogue for consideration (social partners were calling for the withdrawal of the Bill so that their comments be incorporated), the Minister of Public Service, who also attended the social dialogue meeting on 10 March 2011, explained that it was currently being debated in Parliament. Further proposals for amendment could be forwarded through the parliamentary structures. However, arrangements were being made to assist the parties to have a meeting with the relevant Committee to make their submissions. Before debating the Bill, the Assembly published a notice in the local media, calling upon the public to make their input, and the Swaziland National Association for Civil Servants submitted their proposals. A formal request was made with the Clerk of Parliament to facilitate a meeting with the relevant Committee. The Clerk was given an indication that the Senate would prefer to meet with social partners once the Bill had been tabled in the Senate.

Pursuant to recommendations that formal discussions take place between the social partners and the Commissioner of Police regarding the application of the Public Order Act and its impact on freedom of association and the right to collective bargaining, these discussions, including the participation of the Commissioner of Labour, took place before the last protest action in September 2010 and were fruitful. The ILO had requested to be given all the relevant pieces of legislation to draft guidelines to the National Steering Committee on Social Dialogue. The police, workers and the Ministry of Labour would have workshops on their responsibilities during protest actions. Recently, workers had expressed a wish to meet with the Prime Minister to discuss some of their concerns. The Prime Minister had agreed, subject to confirmation of a date by the social partners. A meeting with the social partners and the Commissioner of Police was scheduled for 6 April 2011. This meeting discussed the role and responsibilities of the social partners during the protest action which took place on 12–13 April 2011. The police were commended for the good work as there were no incidences of violence during the protest march of 18 March 2011. Teachers and labour organizations were also applauded for monitoring the proceedings during the march, although there were some incidences of stone throwing directed at the police who did not retaliate. The May Day celebrations, 2011, were peaceful and there were no incidences of violence towards the workers. This achievement was a result of constant consultations between the police and the social partners.

In order to build the capacity of the police and sensitize them on international human rights instruments and Conventions Nos 87 and 98 relating to freedom of association, collective bargaining and protection of the right to organize, a formal request was made to the ILO to hold workshops with the police, workers, employers and the Ministry of Labour on their role during protests, as requested in the letters dated 20 August 2010 and 30 March 2011. This capacity-building workshop will be held on 27–28 June 2011 as proposed.

With respect to the recommendation that progress be made on the National Steering Committee on Social Dialogue, the Government had reconsidered the structure to operationalize social dialogue. The current structure was officially launched by the Prime Minister in July 2010. Members of the National Steering Committee on Social Dialogue were appointed under Legal Notice No. 127 of 2010. The National Steering Committee on Social Dialogue had been meeting monthly since February 2010 and a lot of ground had been covered to ensure meaningful and effective dialogue in the country. In September 2010, the Committee and relevant social partners held a workshop on the social dialogue process. This training was facilitated by the Director of the ILO Country Office in Pretoria. The Committee was currently in the process of drafting and finalizing a Constitution to institutionalize and guide the process of social dialogue. The recommendations of the ILO high-level mission had dominated the agenda of the social dialogue meetings. The Chairperson of the Committee had successfully invited two ministers, the Minister for Public Service and the Minister of Justice, and also the Attorney General to dialogue with the Committee on the Public Service Bill, the nullification of the King’s Proclamation of 1973 and the amendment of the Prisons Act, to ensure the right to organize and to negotiate collectively for prison staff. The Committee would be undertaking a study visit to the National Economic Development and Labour Council (NEDLAC) in South Africa to learn from their good practice as they had benefited through dialogue. This visit was rescheduled for July 2011, as the one planned for April 2011 could not take place after cancellation by NEDLAC. New dates had been proposed for early July through the ILO Office in Pretoria.

B. Summary of completed matters

The Government pursued the giving of royal assent to the Industrial Relations (Amendment) Bill, to ensure that the identified areas of the Industrial Relations Act were properly addressed, which was received, and the Act came into force on 15 November 2010. This Amendment Act provided for: (i) an enhanced union right to collective bargaining (section 42) by requiring employers with more than two unrecognized unions to give bargaining rights to such unions; (ii) no requirement for compulsory supervision of strike balloting by the Conciliation Mediation and Arbitration Commission (section 86); (iii) strike notice period had been reduced (section 86); (iv) removal of the statutory restriction on the nomination of candidates for union office (section 29); and (v) establishment of a minimum service in sanitary services (section 2), so that certain categories of workers in the sanitary services were not unduly denied the right to strike.

Finally, with respect to the coroner’s investigation on the death of Mr Sipho Steven Jele, the coroner completed this investigation and submitted a report, which was shared with the social partners. The conclusion in the report was that Sipho Jele committed suicide. The coroner’s hearing was made public and the Jele family were allowed to use their own pathologist and they also had their own legal representative, throughout the hearing. Copies of the report were given to the workers’ and employers’ federations. The report was forwarded electronically to the ILO Office in Pretoria.

In addition, before the Committee a Government representative recalled that, during the presentation of the report of the ILO tripartite high-level mission, his Government had pledged its full commitment to addressing the issues identified by the Committee of Experts. With a view to giving a detailed account of the progress achieved to date, he provided the following additional information.

In the first place, he highlighted the written information provided concerning: first, the adoption of the Industrial Relations (Amendment) Act No. 6, of 2010; second, the national social dialogue structure; third, the coroner’s report on the death of Mr Sipho Jele; fourth, the timetable for the amendment of the Prisons (Amendment) Bill; and fifth, the situation with regard to the King’s Proclamation to the Nation of 12 April 1973. He added that, sixth, the Suppression of Terrorism Act, 2008 had been drafted in line with the Model Legislation Provisions on Measures to Combat Terrorism, developed by the Commonwealth Secretariat and approved by the Experts of the Commonwealth Security Council, also known as the Counter Terrorism Committee. Seventh, the consultations that had taken place between the social partners and the Commissioner of Police on the application of the Public Order Act, 1963 had been either organized under the umbrella of the National Steering Committee on Social Dialogue or initiated by the Ministry of Labour and Social Security prior to protest actions with a view to achieving understanding by all parties and ensuring peaceful actions. He reported, however, that protest actions on 12 to 14 April 2011 had not been peaceful as they had coincided with demonstrations by other groups advocating for regime change. No government could reasonably be expected to take a casual approach to serious threats of regime change. Every government had the responsibility to ensure the safety of its national interest. Despite the progress made in the management of strikes and protest actions, he recalled that a formal request had been made to the ILO to help develop guidelines on the conduct and responsibilities of the police and social partners during strike and protest actions. Copies of the Police Act and Regulations had been provided to the ILO to facilitate the drafting of such guidelines. Eighth, in relation to the Public Service Bill, the workers had been able to make their input to the text which had been examined by the Labour Advisory Board. The Bill had already been debated by the House of Assembly and would be presented to the Senate. Ninth, on 26 April 2011, the Government had requested the ILO to provide assistance with the review of the provisions of the Constitution and their impact on the Convention. Tenth, in relation to the issue of anti-union discrimination in export processing zones (EPZs), the speaker indicated that a joint inspection of the textile and apparel industry had been conducted in November 2010, covering 23 establishments employing up to 15,939 workers, that follow-up inspections were currently being conducted and that those deliberately failing to comply with labour laws were being prosecuted. Finally, sections 40 and 97(1) of the Industrial Relations Act, 2000, respectively covering civil liability and criminal liability of organizations or their office bearers for damage and other unlawful behaviour during strikes and protest actions, were on the agenda of the Labour Advisory Board.

The Worker members said that it was not surprising to see Swaziland before the Conference Committee, following a special paragraph the previous year and the ILO tripartite high-level mission in October 2010. Swaziland had a long history of repressing trade unions, and the Government’s replies promised only scant progress. The country continued to be scarred by police brutality in the face of non-violent demonstrations, which on 1 May 2010 had led to the death of a demonstrator in custody. Trade union leaders were still being arrested and harassed in their homes, for example following the entirely legal days of protest held at the beginning of April 2011. In terms of legislation, the amendments and repeals requested for years were still being awaited, despite ILO high-level missions in 2006 and 2010. The Government was in the habit of systematically citing the drafting of bills which subsequently turned out not to exist. After all of these years, the Industrial Relations Act (IRA) had been amended only in certain areas relating to restrictions on the appointment of trade union leaders, the supervision of strike ballots and collective bargaining in enterprises with more than two trade unions. However, those amendments would remain empty words unless other articles of the IRA, such as provisions on the civil and criminal liability of trade union officials and their unions, were amended and a number of other general acts directly or indirectly seriously affecting trade union activities were repealed or amended. The Public Order Act, the Police Act and even the 1973 Proclamation of a State of Emergency, which had formally been revoked but was incorporated in the new Constitution, all allowed legitimate trade union activities to be repressed or penalized. Within the long list of such legislative texts, the recent 2008 Suppression of Terrorism Act was particularly formidable in so far as it provided a basis for justifying a wide range of attacks on freedom of association. In its statement this year, the Government had again contented itself with giving updated information on bills and discussions it said were under way, so as to delay any change. The situation with regard to social dialogue was equally worrying. The Government had referred to a National Steering Committee on Social Dialogue, the structure of which had apparently been bolstered. Genuine social dialogue, however, could not exist when one of the parties lived under permanent threat of arrest or aggression. The developments reported in that regard illustrated once again the false promises made by the Government to the ILO.

The Employer members, while stressing that this was a serious case, indicated that their view was slightly less negative than that of the Worker members, in light of the written and oral information supplied by the Government which necessitated the examination and appraisal of the Committee of Experts. The Conference Committee was examining this case for the tenth time and had included its conclusions in a special paragraph of its report in 2009 and 2010. Following its 2010 conclusions, an ILO tripartite high-level mission had visited the country in October 2010. The present case dealt primarily with three issues: violation of civil liberties, interference in trade union affairs and lack of effective social dialogue. The information provided by the Government appeared to indicate a change of attitude that needed to be acknowledged but that would need to be evidenced by future action. The Employer members had therefore adjusted their position so as to focus on approaches accelerating the Government’s attempts to solve the long-standing issues. However, the information submitted by the Government only constituted a small first step. Legislation needed to be brought into line with the requirements of the Convention and needed to be implemented with a rigorous system of labour inspection and administrative complaints process with recourse to an independent judiciary with enforcement authority. While this year’s May Day had been peaceful, police interference in peaceful protest activities persisted and needed to cease. Stressing that many measures remained to be taken to give effect to the Convention, the Employer members believed that ongoing ILO technical assistance was crucial to tackle the issues relating to legislation, social dialogue and police interference. They called for a commitment by the Government to taking advantage of the technical assistance of the ILO so that by the end of 2011 concrete proposals would be enacted and measures would be taken to ensure their implementation. It was critical that the Government provide substantial evidence that its change of attitude was sustainable.

The Worker member of Swaziland drew the attention of the Committee on the governance and human rights crises in the country. Indicating that workers could not meet, march or use the media freely, he stated that social dialogue in such a context was a farce for the following reasons: (i) the continuous arrests and harassment of trade union and civil society leaders did not create a climate favourable to genuine negotiations; (ii) the lack of serious political will relegated the negotiation process to the level of a mere talk-shop; (iii) social dialogue was being organized only as a public relations exercise to give the impression that human rights and trade union rights violations were being addressed; (iv) the authorities, including the head of State, publicly demonized any form of negotiation with the trade union movement and civil society; (v) the public institutions such as the judiciary, the media, security and religious institutions were used against trade unions and civil society; and (vi) it would be fundamental that the process be inclusive, transparent, accountable and binding. In this context, any claim of progress would only be intended to mislead the Committee. As regards the legal framework, the speaker noted that the Government had refused to withdraw the Public Service Bill from Parliament for discussion by the National Steering Committee on Social Dialogue. Sanitary workers were still denied the right to strike despite the recommendations of the ILO tripartite high-level mission. Section 40 of the Industrial Relations Act had still not been amended, leaving trade unions and their leaders open to criminal and civil liability, a brutal tool used by the Government to suppress trade union activity. There was no agreed timetable for the finalization of the Prisons Amendment Bill, and prison staff was still denied the right to organize and to bargain collectively. Defying the ILO tripartite high-level mission recommendations, the Government refused to issue a decree or proclamation explicitly nullifying all of the provisions of the Proclamation of 1973. The speaker dismissed the findings of the coroner’s report as wanting and speculative and requested the Committee to assist the Government in setting up an independent inquest into the death of Mr Sipho Jele. The Public Order Act of 1963 continued to be used by the Government to suppress trade union activities in the country, including during the 12 to 15 April 2011 demonstrations and, more recently, on 14 May 2011 in relation to a trade union workshop. He noted with concern the statement made by the Government representative concerning set and agreed time frames with various institutions to address the violations and questioned the seriousness of this commitment undertaken before the Committee. Finally, he called for the Committee to retain its conclusions on Swaziland in a special paragraph of its report and to ask the Governing Body, in November 2011, to consider setting up a Commission of Inquiry on the issues at stake.

The Employer member of Swaziland noted the significant progress on this case since last year: (i) the provisions of the Industrial Relations Act had been amended and had received royal assent; (ii) the National Steering Committee on Social Dialogue had been launched in July 2010 and had been meeting on a monthly basis, sometimes in the presence of Ministers, a protocol for social dialogue had been established, and a study tour to the National Economic Development and Labour Council (NEDLAC) in South Africa was scheduled (she thanked the ILO Office in Pretoria for the support provided with several of the abovementioned points); (iii) the ILO tripartite high-level mission had highlighted the issues to be addressed, which the Government should endeavour to resolve as a matter of urgency; (iv) the coroner’s report on the death of a protester who had been arrested on 1 May 2010 had been communicated to the ILO, and the 2011 May Day celebrations had not been tainted by violent incidents (she applauded the maturity displayed by the police force on that day and congratulated the workers for the formation of the Trade Union Congress of Swaziland which was a positive development); and (v) the ILO Office in Pretoria had been requested to provide expert advice on the provisions of the Public Order Act of 1963 and to conduct a workshop with the police, government officials, workers and employers on how to manage protest actions in the future. Having noted these positive developments, she condemned in the strongest terms the frequent dawn raids by the police targeted at union leaders against whom no charges were brought, the invasion of lawful trade union meetings by the police and the latter’s growing tendency to interfere with lawful protest actions. As regards the status of the Proclamation of 1973, this matter should be addressed in a different forum as it did not fall within the purview of the tripartite structure. She expressed her concern at the extremely slow process of aligning national legislation with the provisions of the Constitution. In conclusion, drawing the attention of the Committee to the very difficult economic situation currently faced by Swaziland and recalling the significant progress made in relation to the issues raised by the Committee of Experts, she asked the Conference Committee not to include the conclusions concerning Swaziland in a special paragraph of its report, but to strongly encourage the Government to finalize the outstanding report.

The Government member of Hungary, speaking on behalf of the Governments of Member States of the European Union (EU) attending the Conference, as well as the candidate countries (Turkey, Croatia, The former Yugoslav Republic of Macedonia, Montenegro and Iceland), potential candidate countries (Albania and Bosnia and Herzegovina), Norway, the Republic of Moldova, and Switzerland, recalled that the human rights situation in Swaziland in general, and the lack of compliance with the Convention in particular, was a long-lasting case that had been discussed by the Committee several times. She shared her deep concern about allegations of Government-sponsored actions against trade union activities and dismissal of workers who had taken part in lawful actions and exercised their right to participate in peaceful strikes, including the disruption of the 2010 May Day demonstrations and the arrest and death in custody of a participant. Taking note of the comments of the Committee of Experts as well as the steps taken so far to amend the legislation, she urged the Government, with the assistance of the ILO, to bring its legislation into conformity with the Convention, preferably in a tripartite manner, and to ensure its effective enforcement. Issues remained to be addressed, among which the right of certain groups of workers to organize and to take lawful industrial actions. She called on the Government to provide detailed information regarding the reported acts of violence against trade union activists and participants in lawful and peaceful strikes.

The Worker member of Nigeria, recalling the history of repression of trade unionists by military governments in his country, expressed solidarity with the situation of Swazi workers. The legislation negatively affected the rights of trade unionists, and the Government still showed open disdain for processes that could help reform those laws. Thus, the Proclamation of 1973 was still in force, although the 2005 Constitution was supposedly in operation, and had continued to close democratic spaces including for trade unions and workers. The Suppression of Terrorism Act, 2008 had become, consciously, a tool for the Government to harass, raid and detain trade union members and leaders and to legitimize the disruption of trade union activities by police and security agents. The Public Order Act, 1963 was still being used by the police to harass workers, their families, neighbours and communities, and to undertake dawn raids and detain trade union leaders to prevent their participation in planned protest marches. Such treatment had been experienced by Mr Dlamini, President of the Swaziland Federation of Trade Unions (SFTU); Mr Kunene, President of the Swaziland Federation of Labour; Ms Mazibuko, President of the Swaziland National Association of Teachers; Mr Ncongwane, Secretary-General of the Swaziland Federation of Labour; and other leaders. Workers continued to be routinely and tacitly labelled as terrorists, and their activities continued to be disrupted, even after the inclusion of the Committee’s conclusions in a special paragraph of its report and the ILO tripartite high-level mission. The speaker expressed the strong conviction that a Commission of Inquiry would help establish the truth in terms of the status of legislation and the violations in practice of the workers’ right to organize.

The Government member of Zimbabwe, having followed closely the Government’s statement and in light of the submitted written information, noted the Government’s eagerness to implement the recommendations of the ILO tripartite high-level mission. He called on the ILO to extend more technical assistance to the Government with a view to enabling it to fully implement these recommendations.

The Worker member of Denmark observed that despite the ILO tripartite high-level mission, the Government had yet to demonstrate progress towards compliance with the Convention. Since 1973, the Government had ruled the country through the use of force, brutality and the absence of the rule of law and of social dialogue. There was a long tradition of trade union repression and, despite the Government’s promises, the situation had not improved. Highlighting the gravity and extent of the violations and the fact that the harassment, arrest and detention of trade union leaders had simply been triggered by their exercise of democratic rights, he indicated that those violations had a disturbing effect on wages and working conditions in every sector of the economy, including export. Poor rights and labour standards were used by some governments as a way to attract investments. In particular, labour standards violations might be used to encourage foreign direct investment, especially inside EPZs, where fiscal and legal exemptions were granted to enterprises. The EU was, together with South Africa, the largest trading partner of Swaziland whose main export to European countries was sugar. While evoking the fact that European workers were also consumers, he emphasized the importance of remembering that this sweet-tasting product was produced in the shadow of workers’ rights violations. The speaker hoped that European countries would draw the obvious conclusions from the lack of progress with respect to democracy and human rights in Swaziland. Given that ratification of and compliance with labour standards was a necessary precondition for sustainable development, governments and leaders in Europe needed to investigate the continued violations of fundamental workers’ rights in that country. Finally, he hoped that the EU would withdraw the preferential trade arrangements enjoyed by Swaziland at present if national laws were not brought into line with ILO standards, and that African countries would also take action against these violations.

The Employer member of South Africa declared that individuals were the products but not the prisoners of their past and were thus free to craft a new future. The progress made was encouraging, inter alia, the approval of minimum services for sanitary workers and the clear statement of the Government concerning the hierarchical superiority of the Constitution as compared to the 1973 Proclamation. According to South Africa’s experience, genuine social dialogue was essential to build democracy, enable the exercise of fundamental human rights, resolve social tensions, lay the basis for durable social dialogue institutions and create an environment conducive to business prosperity. The speaker was pleased to recommend to the social partners of Swaziland to undertake a visit to NEDLAC. The Government should create the environment for social dialogue, end the arrests of union and civil society members, eliminate laws limiting freedom of association and ensure access to information. Emphasizing the need for the Government to acknowledge the importance of social dialogue, he expressed support for all future efforts to address the issues raised in this Committee and called for the full commitment of all partners and the international community.

The Worker member of South Africa, recalling that this case had been discussed for several years, was concerned that it might become a perennial stigma before the Committee. Drastic measures were needed so as to bring the country towards a lasting solution, to ensure the end of impunity and unfulfilled promises and to prevent the accentuation of the crisis which had equally been felt by South African workers, not least because their own members had also been direct victims of Swazi police brutality. With reference to his country’s experience in seeking the achievement of social dialogue, the speaker indicated that Swaziland was currently facing a serious and protracted economic crisis. While security had been the only persistent expenditure increase despite growing poverty, workers were used as scapegoats by the regime, with looming massive retrenchments, pay cuts and reduction in social expenditure. Trade unions had become the targets of State brutality since the banning of political parties. He wished to record his disappointment with the failure of the Government to address the underlying causes of the crisis and called for more serious action to ensure that the necessary steps towards the fulfilment of its obligations were taken. The speaker concluded by supporting the call for further economic pressure and the inclusion of the conclusions of this case in a special paragraph of the Committee’s report.

The Government member of Namibia referred to the several consultations held between the ILO, its Office in Pretoria and the Government. He stated that the country’s openness and willingness to engage at the regional and international level, in order to address domestic issues, together with the progress made on the matters raised during the 99th Session of the ILC (June 2010), including the granting of the Royal Assent to the Industrial Relations (Amendment) Act of 2000, were commendable. The speaker encouraged the Government to show more commitment towards the safeguarding of workers’ rights, including the right to bargain collectively, and recommended the acceleration of the application of the Amendment Act. He also commended the Government on the institutionalization of social dialogue, which showed the existing positive engagement between the Government and the social partners. The monthly meetings held by the National Steering Committee on Social Dialogue, since February 2010, indicated that a lot had been done, in order to ensure meaningful and effective social dialogue on labour issues. The speaker concluded by calling on the ILO to provide the necessary technical assistance in order to address any shortcomings with regard to the Suppression of Terrorism Act of 2008, while also calling upon the international community to render the necessary support to the tripartite process.

The Government member of Lesotho noted the measures taken by the Government to implement the recommendations of the ILO tripartite high-level mission and commended the Government for its efforts in this regard. The social partners should continue to work together harmoniously to finalize the implementation of the recommendations and to accelerate the finding of solutions to the outstanding issues. She called on the international community, and on the ILO in particular, to continue to assist the Government in its endeavours, stressing that the experienced delays could be due to capacity limitations at the national level.

The Worker member of Guinea, based on the experience of Guinean trade unions of freedom of association breaches, highlighted the serious violations of freedom of association that had occurred in Swaziland since the death in detention in 2010 of Mr Sipho Jele, following his arrest during the May Day celebrations. On 6 September 2010, during a peaceful meeting of activists supporting democracy, 50 persons, including trade union activists from Swaziland and delegates from the Congress of South African Trade Unions (COSATU), had been arrested by the police. The activists from Swaziland had been released and the South African activists had been immediately expelled. On 12 April 2011, the police and the army had violently repressed peaceful demonstrations and arrested hundreds of demonstrators, including eight trade union leaders. Mr Maxwell Dlamini, President of the National Union of Students of Swaziland, had been arrested and tortured by the police even before those peaceful demonstrations; he had been obliged, together with his fellow accused, to sign a declaration recognizing the possession of explosives and had been refused bail and access to his lawyer, as well as the right to pass his exams. The speaker emphasized the need to drop the charges against Mr Dlamini, to guarantee his physical integrity and to order his immediate release. The speaker hoped that the Committee would duly take into account such facts when drafting its conclusions.

The Government member of Mozambique stated that Swaziland was a friendly neighbouring country, and he therefore understood its political and labour problems. Dialogue should be frank and open, and the Government’s efforts should be encouraged. The country should continue developing so as to be able to promote development in the region as a result. It was to be hoped that the Government would have the opportunity to engage in dialogue with the social partners and would continue moving forward, with technical assistance from the ILO.

The Government representative emphasized that substantial progress had been made in a short period of time to address the recommendations of the ILO tripartite high-level mission. In addition to the indications given in his opening statement, the speaker affirmed the Government’s commitment to addressing all issues, including those reported as works in progress, such as the review of the Prisons (Amendment) Bill and the Public Services Bill. The Government would also address issues relating to the King’s Proclamation of 1973 and the Public Order Act of 1963, despite the complexity involved. It was hoped that the ILO would continue to provide technical assistance to address the outstanding issues, and assistance would also be sought from other organizations, such as the UNDP and the EU. In conclusion, the speaker reiterated that the Government was fully committed to addressing the challenges faced in a meaningful way, to ensure compliance with the Convention.

The Employer members disagreed with the representative of the Government that substantial progress had been made. However, some small and incremental changes had occurred. The Committee’s conclusions should address the root causes of the issues in the country. There was no meaningful social dialogue process, and the National Steering Committee on Social Dialogue did not constitute a sufficient response. A robust institutionalized social dialogue process need not be entirely at the national level, but could occur at different parts in the governmental structure. Moreover, the Committee’s conclusions should list all the existent statutory gaps and gaps in practice. Both the legislative and civil liberties issues needed to be meaningfully addressed and expedient time frames were required in this regard. Lastly, ILO technical assistance, on an ongoing basis, was essential in this respect.

The Worker members underlined that the situation in Swaziland had been worrying for many years due to the harassment and persecution of trade unionists, numerous acts which contravened fundamental provisions of the Convention, and the lack of will shown by the Government. The Government should put an end to acts of violence against trade unionists, repression of trade union activities and the denial of human rights. Furthermore, the events that had occurred during the commemoration of May Day 2010 should form the subject of an independent investigation. The Government should carry out the legislative reforms recommended by the Committee of Experts and the high-level tripartite mission. In particular, amendments should be made to the Industrial Relations Act, the Public Order Act and the Prisons Act, and the Proclamation of a State of Emergency and the Suppression of Terrorism Act should be repealed. More particularly, the Government should create the conditions needed for significant and sustainable social dialogue. It should also be observed that the situation had barely changed, despite assistance and recommendations from the ILO. Consequently, the Government should submit, before the next session of the Committee of Experts, information allowing that Committee to assess whether significant progress had been made. If it had not, a complaint could be brought under article 26 of the Constitution. In conclusion, the Worker members requested that the Committee’s conclusions on the case be included in a special paragraph of its report.

Conclusions

The Committee took note of the written and oral information provided by the Government representative and the discussion that followed.

The Committee took note of the Government representative’s statement that, following the high-level tripartite mission which visited the country in October 2010, a number of steps had been taken by the Government. In particular, the Industrial Relations Act was amended in accordance with the requests of the Committee of Experts and came into force on 15 November 2010. The coroner’s report into the death of Mr Sipho Jele had been shared with the ILO and the workers’ and employers’ federations. In addition, the National Social Dialogue structure was now fully functional and had been meeting on a monthly basis. In addition, it was agreed that a prison bill had to be submitted to the Labour Advisory Board for consideration. As regards the outstanding questions in relation to the 2008 Suppression of Terrorism Act and the 1963 Public Order Act, he stated that his Government was awaiting ILO feedback and expert advice on the matters that were affecting the application of the Convention. The 1973 King’s Proclamation had been discussed in the Steering Committee on Social Dialogue and the question of the compliance of constitutional provisions with the Convention had been placed on the agenda for the Steering Committee’s July meeting. As regards police intervention in protest actions, he stated that while a number of demonstrations over recent months had been peaceful, unfortunately one planned protest coincided with other groups advocating for regime change and the Government was therefore obliged to ensure the safety and security of the nation and its people. The Committee further noted the detailed written information provided which indicated the status of each of the recommendations of the high-level tripartite mission and the steps taken or envisaged.

The Committee recalled that it had discussed the question of the application of the Convention in Swaziland for many years and that it had placed its conclusions in a special paragraph in 2009 and 2010. The Committee welcomed the visit of the high-level tripartite mission to the country in October 2010, as well as the subsequent legislative changes as requested by the Committee of Experts and other plans to address policy concerns and civil liberty issues that had been raised. It deeply regretted, however, that this progress did not appear to be transposed into the practice in the country and that, as long as certain legislative texts restricting freedom of association and basic civil liberties remained in force, compliance with the Convention could not be assured. In particular, the Committee deplored the continuing allegations of arrest and detention following peaceful protest actions, and regretted to be obliged once again to recall the importance it attached to the full respect of rights and basic civil liberties such as freedom of expression, of assembly and of the press and the intrinsic link between these freedoms, freedom of association and democracy. The Committee once again stressed that it was the responsibility of governments to ensure respect for the principle according to which the trade union movement could only develop in a climate free from violence, threats or fear.

The 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, it requested the Government to elaborate a roadmap for the implementation of the long called-for measures:

– to ensure that the 1973 King’s Proclamation had no practical effect;

– to amend the 1963 Public Order Act so that legitimate and peaceful trade union activities could take place without interference;

– to avail itself of ILO assistance in training the police and drafting guidelines to ensure that their actions did not violate the fundamental rights consecrated in the Convention;

– to ensure, including through necessary amendment, that the 2008 Suppression of Terrorism Act may not be invoked as a cover-up to suppress trade union activities;

– to place the Public Service Bill before the Social Dialogue Steering Committee to ensure full tripartite debate prior to adoption;

– to consult the Social Dialogue Steering Committee on the proposed amendments to ensure the right to organize to prison officers, as well as the outstanding matters in the Industrial Relations Act; and

– to establish an effective system of labour inspection and effective enforcement mechanisms, including an independent judiciary.

The Committee expressed the firm hope that significant progress would be made on these matters by the end of the year and that the Committee of Experts and this Committee would be in a position to note significant and sustainable progress in this regard.

The Committee decided to include its conclusions in a special paragraph of its report.

Individual Case (CAS) - Discussion: 2010, Publication: 99th ILC session (2010)

A Government representative, Minister of Labour and Social Security, said that his Government attached great importance to the work of the Conference Committee and the goals of the ILO and undertook to continue observing the letter and spirit of ratified ILO Conventions including Convention No. 87. He would seek to demonstrate that Swaziland had achieved significant progress towards compliance with international labour standards.

With respect to the Industrial Relations Act (IRA), the Government had published the Industrial Relations (Amendment) Bill and had tabled it in Parliament where it was currently under consideration. The Bill addressed several issues raised by the ILO high-level mission as well as the Committee in that it: (1) granted the right to organize to domestic workers by broadening the definition of “undertaking” (clause 2(1)(b)); (2) provided for the establishment of a minimum service in the event of strikes in sanitary services; (3) removed the statutory restrictions relating to the nomination of candidates and eligibility for union office (clause 3); (4) shortened the dispute settlement procedures (clauses 5 and 6); and (5) ensured that the Conciliation, Mediation and Arbitration Commission (CMAC) would only supervise strike ballots at the union’s request (clause 6(b)).

With regard to the status of social dialogue, the Government representative announced that the National Steering Committee on Social Dialogue had been appointed and comprised the Minister of Labour and Social Security as the Chairperson, representatives from the two workers’ and two employers’ federations, as well as the Principal Secretary, Labour Commissioner and Legal Advisor of the Ministry. The Committee was fully operational and had agreed to a schedule of monthly meetings for 2010. In addition, the discussions on the Decent Work Country Programme had been concluded and the social partners intended to sign it shortly.

The Government representative vehemently denied the alleged indiscriminate use of the Public Order Act of 1963 to repress lawful and peaceful strikes. The Act did not apply to meetings of lawfully registered trade unions. In the event, however, that a meeting turned violent, police might intervene to maintain law and order. Its presence was essential to protect both the rights of persons participating in strike action and of innocent citizens. He also drew the Committee’s attention to the appointment in September 2009 of the members of the Commission on Human Rights and Public Administration. This autonomous body, the mandate of which covered human rights including workers’ rights, had commenced its work. With reference to collective bargaining for prison staff, the Government had taken the decision to amend the Prisons’ Act in line with the recommendation of the ILO high-level mission.

As to the practical application of section 40 of the IRA concerning civil and criminal liability of workers and their organizations, the Government representative believed that the provision did not impair the right to strike. However, strike and protest action became increasingly violent and destructive to private property. The Government not only had to ensure that workers freely enjoyed the right to strike but also to protect the rights of others. The worker groups should thus ensure that only their members took part in lawful strikes and instil a sense of responsibility in them. Regarding the repeal of the 1973 Decree/State of Emergency Proclamation (1973 Decree), he reiterated that the 2005 Constitution was the supreme law of the country. Finally, the Government representative reaffirmed that Swaziland was committed to complying with international labour standards and would continue to respect its reporting obligations.

The Worker members stated that Swaziland had a long tradition of trade union repression and that the case was therefore regularly discussed by the Committee. The previous year it had even been mentioned in a special paragraph. The facts were unfortunately familiar and, even if the Government’s replies varied slightly, they did not contain much promise of improvement.

With regard to the facts of the matter, it was worth recalling that they involved acts of violence and brutality by the police against trade unionists and union demonstrations, threats of dismissal of union members who had gone on strike in the textiles sector and the summonsing and arrest of union leaders such as the General Secretary of the Swaziland Federation of Trade Unions (SFTU). Only recently, that very week, private houses had been raided and bombed.

In terms of legislation, the Committee had found on every occasion that it had discussed the case that the Government had not adopted the amendments that had been called for years, despite the technical assistance it had received from the ILO and the visit of a high-level mission in 2007. They reminded the Committee that the IRA needed to be amended, specifically on the following points: control over the appointment of union officials, supervision of votes on strike action, the ban on strikes in the health sector and the requirement that a trade union’s membership comprise 50 per cent of the workers for it to be recognized. The Government had only very recently submitted to Parliament the amendments to the IRA to which the Labour Advisory Board (LAB) had agreed upon in 2009. There was therefore no guarantee that the new Act would be adopted and implemented in the near future. There were, moreover, several other laws that directly or indirectly undermined trade union activities: the 1973 Decree, which had supposedly been repealed by the new Constitution, which nevertheless contained the same provisions; the 1963 Public Order Act which had been used to suppress lawful strikes and peaceful demonstrations; the Police Act which had been used to arrest union officials and confiscate union property; the Prisons’ Act prohibiting prison staff from forming trade unions; and, above all, the Suppression of Terrorism Act which served to justify measures taken against union activities.

Social dialogue was also a source of concern. The Government spoke of a high-level commission on social dialogue, but if the commission had ever existed it had been dissolved in 2009 and replaced by a much lower level committee composed of the social partners and only ministers of labour and charged with social affairs, which had not met for months. This wordless social dialogue illustrated the Government’s approach to the subject, which involved announcing reforms and establishing committees without any actually happening in practice.

The Employer members recalled that this case had a long and disappointing history of failure to comply with the Convention. It had been the subject of 17 observations by the Committee of Experts and was being examined by the Conference Committee for the ninth time. With reference to their earlier intervention during the general discussion, the Employer members wished to emphasize that, in their view, Convention No. 87 neither provided for the right to strike nor guarantee certain forms of strike action. They could not therefore agree with the comments of the Committee of Experts in respect of recognizing the right to strike in sanitary services, ensuring that penalties imposed on strikers did not impair the right to strike and guaranteeing that workers might engage in sympathy strikes without incurring sanctions. They also noted that it would have been useful for the Committee’s discussion to be able to consult the 2009 International Trade Union Confederation (ITUC) comments concerning the alleged detention of the General Secretary of the SFTU and the Government’s reply.

The Employer members believed that there remained two fundamental issues in this case: (1) the continuing failure to adopt national legislation guaranteeing freedom of association and the protection of the right to organize; and (2) the failure to engage effectively in social dialogue. Regarding the first issue, the stark fact was that, more than 30 years after the ratification of the Convention and despite last year’s mention of the case in a special paragraph of the Committee’s report and ILO technical assistance, including the 2006 high-level mission, the Industrial Relations (Amendment) Bill had not yet been adopted. It was therefore difficult to remain anything other than highly sceptical that the legislation would finally be amended. Recalling that through ratification of the Convention the Government had committed itself to giving effect to Articles 2, 8 and 11, the Employer members stated that the Government should continue to avail itself of ILO technical assistance, in order to address as a matter of urgency all pending legislative issues mentioned in the observation of the Committee of Experts.

With regard to the second issue, noting that the Special Consultative Tripartite Subcommittee of the High-level Steering Committee on Social Dialogue had not met for several months and in the absence of any information concerning a new lower level committee, the Employer members urged the Government to reinvigorate all efforts to engage in social dialogue without delay. The failure to do so up to now gave rise to serious doubts about the Government’s will to comply with the requirements of the Convention, given the allegations of the continuing violations in this case of repression of freedom of speech, police brutality and oppression. When considering the report of the Committee of Experts, it was challenging to accept that there had been genuine progress. The Employer members therefore respectfully invited the Government to provide today: (1) a clear and unequivocal time frame for the adoption of national legislation giving effect to the Convention, in particular Articles 2, 8 and 11; and (2) a clear and unequivocal commitment to engage effectively in social dialogue.

The Worker member of Swaziland affirmed that the denial of freedom of association had reached deplorable levels in Swaziland and that the atmosphere had become so threatening and oppressive that workers died in their quest to associate and assemble freely. The lack of social dialogue was one of the key contributing factors to the social, political and economic challenges faced by the country. Despite the promise made by the Government at the 2009 discussion to convene the High-level Social Dialogue Committee to be chaired by the Deputy Prime Minister, the Government had done the opposite by dissolving the Committee in December 2009 and replacing it with a low-level committee to be chaired by the Minister of Labour and Social Security. Unlike the previous body, the current National Social Dialogue Committee had no budget, as the social partners were expected to bear the costs, and had not yet discussed any matter of importance, nor was any cluster committee in place. The arrangements were clearly intended to impede the Committee’s work, given the Government’s preference for a socalled smart partnership dialogue process which was not representative, but was fully funded. The above clearly demonstrated that the Government did not support social dialogue.

In relation to the amendment or repeal of inconsistent legislation, the Worker member indicated that the 2005 Constitution could not revoke the effects of the 1973 Decree, since the Constitution only nullified legislation that was inconsistent with its provisions. The Decree therefore clearly remained in force. Peaceful trade union protest actions continued to be violently disrupted under the guise of enforcing the Public Order Act or the Suppression of Terrorism Act. Unions remained civilly and criminally liable for any acts occurring during protest action under section 40 of the IRA. In this context, he contested that there had been any acts of violence initiated by workers during protest action. The Government had only submitted the Industrial Relations (Amendment) Bill to the LAB in May 2010, although the tripartite drafting process had been completed before June 2009, which proved the Government’s claims of progress misleading. Moreover, he was not aware of any proceedings instituted to amend the Prisons’ Act to grant correctional service employees the right to organize.

The Suppression of Terrorism Act was used to repress voices of dissent of trade unions and political parties. It defined the term “terrorist act” as any act or action that compelled the Government to do or refrain from doing something. Given the monitoring role of trade unions as to whether government actions were in the interest of workers, trade union actions could easily fall under this broad definition which covered both peaceful and violent means. The Act was used to suppress union activities under the guise of suppressing terror. The Workers’ Day celebration on 1 May 2010 had been violently disrupted involving physical searches, confiscations and arrests. Mr Sipho Jele was charged under the Suppression of Terrorism Act and, after three days of custody, was reported to have hung himself in prison. Contrary to police instructions to bury him on the following day, the family had requested an independent autopsy. His burial on 15 May was brought to a halt by 400 armed police and at the funeral on 21 May the leader of the Peoples United Democratic Movement (PUDEMO) had been arrested. The Government had since instituted an inquest into the death of Mr Jele, which was, however, limited to the causes of death and did not cover the police conduct on 1 May. In November 2009, police officers had detained organizers of the Swaziland Transport and Allied Workers Union, confiscated membership forms and interrogated all union officers on the grounds of orders to prevent the unionization of public transport workers. The Worker member concluded that Swaziland had turned into a police State. The Government should be encouraged to remove urgently all obstacles to fundamental rights and freedoms.

An Employer member of Swaziland commended the Government for the significant progress made so far on the legislative amendments. The Industrial Relations (Amendment) Bill sought to recognize the right to organize of domestic workers and the right to strike in sanitary services, remove the statutory restrictions on the nomination of candidates and eligibility for union office, ensure that the CMAC could not supervise strike ballots unless requested to do so and shorten dispute settlement procedures. Although practical implementation was still a challenge, she was optimistic that the country had taken a step in the right direction.

It was regrettable that once again the application of this fundamental Convention by Swaziland was being discussed in the Committee. The issues raised in this case could have been easily resolved if the Government had been genuinely committed to the process of social dialogue. The Swaziland employers strongly believed in social dialogue, in particular in light of the difficult economic situation of the country, and appreciated the establishment of the National Steering Committee on Social Dialogue, which had scheduled monthly meetings to address key issues of concern to the social partners. She expressed disappointment at the slow pace of the social dialogue process and indicated that this issue had repeatedly been brought to the attention of the relevant authorities. While the Ministry of Labour and Social Security had displayed good will, this was not evident in other parts of the Government. As long as both social partners and the Government were committed to the process of social dialogue, progress on all pending issues of the case could be achieved. She therefore strongly recommended that an effective social dialogue framework be put in place as a matter of priority and looked forward to the non-inclusion of Swaziland in a special paragraph in the Committee’s report.

Another Employer member of Swaziland saw a solution only in the process of constructive social dialogue and was committed to persuading the Government to deal with all the issues raised by the Committee. Requiring a stable and free political environment in which enterprises could operate, his organization was not involved in politics and aimed to undertake a moderating role. Meetings of the Steering Committee on Social Dialogue had commenced and the social partners had vowed to make it a success and he therefore emphasized that the case should not be included in a special paragraph of the Committee’s report.

The Government member of Norway, speaking on behalf of the Government members of Denmark, Finland, Iceland, Norway and Sweden, noted with growing concern the continued negative developments of the human rights situation in Swaziland in general and the lack of compliance with the Convention in particular. She was further deeply concerned at the aggravated situation in relation to political opposition and trade unions in Swaziland, including freedom of expression, as well as the right to organize. Noting that the ITUC had reported “serious acts of violence and brutality of the security forces against trade union activities and union leaders in general”, she deplored the death in custody of PUDEMO member Sipho Jele, who had been arrested on Workers’ Day.

The Committee of Experts had once again highlighted several pieces of legislation because of their non-conformity with the Convention. While considering the steps taken to amend the legislation, she urged the Government to ensure that its legislation be fully compliant with the Convention. The human rights situation in the country, including the right of workers to organize and to arrange and participate in legal strikes in accordance with Convention No.87, was a long-lasting case and had been discussed in this Committee several times. She therefore urged the Government to continue to benefit from the technical assistance of the ILO in order to bring the legislation into compliance with Convention No. 87 and to ensure the effective enforcement of the legislation. She further urged the Government to provide detailed information regarding the reported acts of violence against trade union activists and those participating in lawful and peaceful strikes.

The Worker member of South Africa regretted that Swaziland had become southern Africa’s tragedy. South African workers had worked closely with Swazi trade unions in support of the struggles for workers’ rights and democracy. It had become clear that there could be no meaningful freedom of association, social dialogue or improvement in the lives of workers without democracy. In the region, patience with the ever-deteriorating conditions in Swaziland was growing thinner and far more drastic steps were required to turn things around. The mysterious death of Mr Sipho Jele and the intensified ruthless persecution of workers and political activists pointed to a regime determined to intensify the harsh treatment of its people. The King’s order for the strangling of opposition, targeting particularly activists of the Swaziland Youth Congress (SWAYOCO) and the PUDEMO, with its President Mario Masuku, had laid the basis for the current unacceptable levels of worker persecution. The Suppression of Terrorism Act, the Public Service Bill and a series of other laws confirmed the increased militarization of society, further limiting and worsening the possibilities for freedom of association. Army personnel were all around intimidating people. The persecution of political and workers’ activists was a systematic attack on those people demanding democracy and social justice. The Swazi State had never felt as threatened and desperate. This was manifested in the increased attacks on workers and all those fighting for democracy and was similar to the tactics used by South Africa’s Apartheid regime, which had also bombed and raided activists’ homes. As Swaziland was permanently represented on the ILO’s list of violators of Convention No. 87, decisive steps had to be taken to achieve the desired impact. She therefore: supported the call for an ILO high-level delegation whose findings should form the concrete basis for real progress; called for meaningful, genuine and lasting social dialogue that would help Swaziland out of the current quagmire; and also called for an independent inquiry into the death of Mr Sipho Jele and the behaviour of the Swazi security forces in relation to workers’ activities.

The Worker member of Ghana observed that the environment for workers to exercise the right of freedom of association and protection of the right to organize, as enshrined in Convention No. 87, remained very bad. The Government had made little progress in ensuring and guaranteeing workers’ rights in general despite, as observed by the Committee in 2009, the country benefiting from ILO technical assistance and high-level missions. This was compounded by the absence of a true pluralistic democratic environment in Swaziland and the suppression of freedom of choice. The repeal of the draconian 1973 Decree through the enactment of a new Constitution in 2005 had merely maintained the political status quo in force since 1973, giving executive, legislative and judicial powers to the King and setting a ban on political parties and meetings, including union meetings, as demonstrated in the brutal disruptions of the 2010 May Day celebrations by state security. Intimidation, arbitrary arrests and brutality against trade union activists had continued with impunity. Of particular concern was the use of state security to intimidate and harass workers and trade union leaders, which had instilled awe and insecurity in workers and the wider society and undermined the very essence of freedom of association.

The enactment of the Suppression of Terrorism Act had further worsened the environment for exercising the rights enshrined in the Convention. Based on this Act, the Government had started categorizing actions of workers, trade union associations, political activists and civil society at large as acts of terrorism. Such criminalization of trade union and workers’ activities was not acceptable as it violated fundamental workers’ rights and to the contrary of the Government’s assertions, social dialogue in its true sense did not exist.

There could be no meaningful progress in respect of workers’ rights in particular as they related to Convention No. 87 as long as the Government denied its citizens, including the workers, a democratic environment and space and continued to apply repressive legislation. The recent amendment of some pieces of legislation, as brought forward by the Government, was not enough, but merely cosmetic, as the practice on the ground showed that little or no improvement at all had been achieved.

Taking into account that freedom of association was particularly important to attain the ILO’s objectives, he strongly urged the Government to work with the social partners and other stakeholders swiftly towards removing all repressive pieces of legislation, including the Suppression of Terrorism Act, and to create a true democratic environment enabling the exercise of the right to freedom of association.

The Government member of Mozambique, speaking on behalf of the Government members of the Committee, Member States of the Southern African Development Community (SADC), endorsed the report and Swaziland’s commitment to apply and respect all ratified ILO Conventions, and notably Convention No. 87. Considering the observations of the Committee of Experts, the SADC countries felt that the steps currently being taken, to which the Employer members had referred, were pointing in the right direction. The meeting of Ministers of Labour and the social partners of the SADC countries had welcomed the fact that all the ILO’s fundamental Conventions had now been ratified. The members of the SADC were endeavouring to ensure the implementation of the Conventions.

The Worker member of the United States emphasized that, since 1997, Swaziland had been reviewed in relation to Convention No. 87 on numerous occasions and the case had been included in a special paragraph of the Committee’s report on several occasions, including in 2009. The Committee of Experts had explicitly called for authentic results to be produced at the 2010 session of the Conference Committee, in particular: (1) abrogating the 1973 Decree, which had been used to destroy the exercise of the right of workers to freedom of association; (2) amending the 1963 Public Order Act to avoid it being used to proscribe peaceful strikes; (3) amending the Prisons’ Act to grant trade union rights to prison staff; and (4) overhauling those civil and criminal liability provisions of the IRA imposed on trade union leaders for having exercised their right to coordinate peaceful strike action. It was unfortunate that in this case the Employer members did not recognize the irrefutable jurisprudence of the ILO supervisory bodies stating that the right to strike was also at the heart of Convention No. 87.

In 2009, the Committee had called upon the Government to “transmit a detailed report to the Committee of Experts” for its 2009 session, containing a “time-line for resolution” of all pending questions. Since the Government had not implemented any of the requests made and even the Bill to amend parts of the IRA remained a Bill, the Government had once again acted in contempt of the ILO supervisory system’s conclusions. The Government continued to use devices such as the 1973 Decree and the Public Order Act to victimize the SFTU through police harassment and arrests, as well as to justify death threats to Mr Jan Sithole’s family. These devices had also been used to bust legitimate trade union activity in Swaziland’s critical textile sector, which was dominated by Taiwanese companies. In March 2008, the police had conducted a crackdown on a strike of thousands of textile workers with tear gas and gunshots.

This was most regrettable as the Government, even in the midst of the great global recession, could easily start overhauling the legislative and executive measures used to justify the arrest, beating, imprisonment and terrorization of Swazi trade unionists, especially in the textile and apparel sectors. It could also easily start complying with all requests made by the ILO supervisory bodies over the last decade. Compliance would be beneficial since trade and market access policies implemented by the United States, such as the African Growth and Opportunity Act, rewarded the observance of core labour standards, including freedom of association. While hoping that the Government would take serious steps to advance both the principle of decent work and those principles enshrined in Convention No. 87, he requested that the conclusions of the Committee be included in a special paragraph of the Committee’s report and that a high-level tripartite mission be conducted.

The Worker member of the United Kingdom had been surprised when, in 2009, he had heard the Employer members’ recollection that since 1997 the Government representative had repeatedly stated that legislation was being changed, the situation was improving and Swaziland would soon be compliant. The only change, however, had been a change for the worse, as shown by the adoption of the new law to remove the right to bail for anyone arrested for participating in protests. Therefore, the Government’s statement had to be taken with a high degree of scepticism, as could be seen when the current discussion was put in a historical context. Swaziland had gained independence and, as was hoped, genuine freedom for its people in 1968 with the establishment of a constitutional monarchy. However, in 1973 the then governing party had effectively ceded absolute power back to the King and established a long-lasting state of emergency which, despite the hope invested in the 2005 Constitution, effectively remained in place today. Swaziland had become a member of the ILO in 1975 and had ratified numerous Conventions without, however, complying with the requirements of several of them, in particular Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

With political parties banned, trade unions had continued to play an essential role in representing the interests of ordinary Swazi citizens. Recalling the repressions enumerated by other speakers, he added that recently suspicious burglaries and thefts of computer equipment from union leaders’ homes and a bomb attack on the house of Mr Alex Langwenya had taken place. While the culprits were unknown, the fact that the police had arrived minutes after the bomb attack and arrested Mr Langwenya himself was not very reassuring. One of the most recent violations had taken place on May Day 2010 when a trade unions festivity at the Salesian sports ground had been raided by the police based on the Suppression of Terrorism Act. Searching for people wearing T-shirts of banned organizations, many gatherers, including guest speakers, had been arrested by the police, partly even violently. The head of the Swazi Consumers’ Association had been arrested on the ground that he was not a worker. Most of those arrested had later been released, but nothing had been heard of union member Sipho Jele, whose family had been interrogated for four hours without being told of his whereabouts. On 4 May 2010 his body had been released and it had been stated that he had hung himself from the rafters of the prison toilet and that he had had to be buried immediately. Very few people believed that he had killed himself. In light of the comments of the Committee of Experts, and taking into consideration the statements made by the Government representative, he emphasized that all those, like Mr Sipho Jele, who were fighting in Swaziland for their most basic rights should see that the ILO could take action that would lead to real change.

The Government member of South Africa aligned himself with the statement made by the Government member of Mozambique, who had spoken on behalf of the Government members of the SADC countries, and expressed his condolences to Mr Jele’s family. He welcomed the report of the Committee of Experts and offered his country’s assistance in promoting social dialogue in Swaziland, as dialogue had been key to his own country’s success. He further welcomed the Government’s commitment to working with the Committee and urged the ILO to support the promotion of meaningful and sustainable social dialogue in Swaziland.

The Worker member of Germany, speaking on behalf of the European trade unions, observed that Swaziland had been in a state of emergency for 35 years. All powers were vested in the King, and opposition parties and gatherings were prohibited. The population, of which 70 per cent lived below the poverty line, suffered most. The violation of trade union rights in the country had been included in a special paragraph of the Committee’s 2009 report. Despite the Government’s promises, the situation of trade unionists and worker representatives had not at all improved. Trade union rights had been curtailed and trade unionists engaged in the promotion of democracy and pluralism were persecuted, threatened and often had to pay for their commitment with their lives.

The Government had established national committees containing the word “dialogue” in their title and, according to the Government, “partnership” also seemed to be a concept with which the Government wanted to face national challenges. These were, however, deliberate deceptions and abuses of terms which were normally used to describe an equal exchange. However, the Government still took decisions unilaterally in its own best interests and to sustain its power, but not for the benefit of the people. This was exemplified, inter alia, with the High-level Steering Committee on Social Dialogue which, despite its nice name was not, however, linked to social dialogue, notwithstanding the Government’s assurances that social dialogue was welcome. Social dialogue in Swaziland only meant one thing: the Government talked, if ever, with employers’ and workers’ representatives and at the end acted as it pleased. This was not social dialogue, but an anti social monologue.

Social dialogue meant that workers, employers and government representatives communicated in a way that enabled them to know and understand the respective positions and to reach agreed conclusions. Only on such a basis could a country’s social and economic progress be promoted. Social dialogue was also key for reducing gaps between laws and their implementation. He was very concerned at the fact that, despite the demands of the international community based on the ratification of the Convention more than 30 years ago, the Government had for years been violating Convention No. 87 and had not therefore been in a position to close the big gaps that existed in national laws. The Committee of Experts had noted that the High-level Steering Committee on Social Dialogue had not met for months. He therefore urged the Government to: (1) include the social partners in all decisions in regard to adjusting the Constitution and national laws to the requirements of Convention No. 87; (2) be open to social dialogue not only euphemistically on paper, but to really end its anti-social monologue; and (3) align the legal basis and its practical action with the requirements of Convention No. 87.

The Government member of Zambia aligned his Government with the statement made by the Government member of Mozambique, who had spoken on behalf of the Government members of the SADC countries. He expressed appreciation at the comprehensive statement made and the measures taken by the Government of Swaziland in an effort to respond to the recommendations of the Committee of Experts. He considered that the ratification of over 30 Conventions, including all eight fundamental Conventions, was also a positive and commendable action. He also expressed support for the legal reforms undertaken by the Government.

Another Government representative, Minister of Justice and Constitutional Affairs, recalled that the current Government had only come into office in 2008 and that one of its priorities was to align national laws with the Constitution. Thirty bills were being drafted by the Attorney-General, but this task was challenged by the limited staff of his office. The Commission on Human Rights and Public Administration, appointed in September 2009, would receive reports on human rights issues from all citizens. The amendment to the Prisons’ Act was an executive decision to be taken by the Minister of Justice and Constitutional Affairs. Once the ongoing drafting process was complete, the Bill would be forwarded to the Minister for Labour and Social Security, for submission to the Labour Advisory Board (LAB.) The workers’ allegation that nothing was being done with regard to the Prisons’ Act was therefore misleading. Furthermore, the unions had met with the police prior to the May Day celebrations to discuss security arrangements. The police had not harassed workers, but had attended the meeting to enforce the law in relation to certain individuals who were violating it. The Government regretted the death in custody of Mr Sipho Jele and had immediately initiated a public investigation led by a Principal Magistrate. The Government had nothing to hide on this matter and therefore a family doctor had been allowed to undertake the post-mortem, together with a government pathologist, and a lawyer appointed by the family was attending the investigation to test the evidence. With regard to the previously alleged murder of a worker, he emphasized that the Government had been cleared of all allegations following a high-level mission.

When the 2009 Public Service Bill had been submitted to Parliament, workers had lobbied for the Bill to be referred to the LAB, and the recommendations of the LAB had subsequently been considered by the Cabinet. In case of further issues pertaining to the Bill, he urged the unions to lobby Parliament as the Bill was now before Parliament.

The Government contested the statement that it used the Suppression of Terrorism Act indiscriminately to intimidate workers. The drafting of the Act was in line with UN Security Council Resolution 1373 (2001) and the Model Legislative Provisions on Measures to Combat Terrorism of the Commonwealth Secretariat and had been inspired by the United Nations Office on Drugs and Crime. According to its objectives, the Act was used to suppress all acts of terrorism and all individuals contravening the Act were arrested. In conclusion, he urged the Committee to take note of the significant progress made by the Government in responding to the issues raised and therefore insisted that Swaziland should be removed from the special paragraph in the Committee’s report.

The Employer members specified that, as their position was clear, they would not further address the comments of the Committee of Experts concerning the right to strike and the requirements of the Convention concerning freedom of association and the right to organize. As in the past, it was not possible to assess the technical information provided by the Government to this Committee. The Government’s assertion that significant progress had been made was disputable. The Labour Bill had been tabled before Parliament, but the request for a specific time frame for its adoption had not clearly been answered by the Government. The Employer members expressed their concern at the Minister of Labour’s lack of staff. With regard to social dialogue, there had been no commitment to hold meetings of the High-Level Steering Committee, and the Government’s indication that this Committee was fully operational was disputable. The Government’s only express commitment on these issues had been to continue to provide further reports. The Ministry of Labour required support to ensure that national legislation was adopted in compliance with the Convention, that resources to support social dialogue were made available and that the Government provided reports on the real situation in the country. Thirty years after Swaziland’s ratification of the Convention, scepticism remained. Unless positive measures were taken to comply with the Convention, this case risked remaining on the list of cases discussed by the Committee. The Employer members expressed support for the legislative steps that had been taken thus far. This case merited insertion in a special paragraph in the General Report. A high-level tripartite technical mission should be sent to Swaziland to inquire into the failure to adopt legislation to comply with the Convention, and to assess the current barriers to social dialogue.

The Worker members indicated that the situation in Swaziland had been a matter of concern for many years for a number of reasons: the harassment, persecution and murder of trade unionists; the numerous laws that were still contrary to the fundamental provisions of the Convention; and the lack of will by the Government to restore a climate of nonviolence and full democracy. The Government should therefore cease all violent acts against trade unionists, all repression of trade union activities and any denial of human rights. They also called on the Government to commission an independent inquiry into the events of 1 May this year. The Government should finally complete the legislative reforms that had been recommended by the Committee of Experts, with particular reference to the amendment of the Industrial Relations Act and the 1963 Public Order Act, and to repeal the Decree/State of Emergency Proclamation and the Suppression of Terrorism Act. The Worker members insisted in particular that the Government finally keep its promises and create the conditions for meaningful and lasting social dialogue. They proposed for that purpose the organization of a high-level tripartite mission and called for the Committee’s conclusions to be placed in a special paragraph of its report.

Conclusions

The Committee took note of the statement made by the Government representative and the discussion that took place thereafter. The Committee observed that the comments of the Committee of Experts had referred for many years to the need to amend the provisions of the legislation containing restrictions on the right to organize of prison staff and domestic workers, the right of workers’ organizations to elect their officers freely and to organize their activities and programmes of action, as well as the need to repeal the 1973 Decree/State of Emergency Proclamation and its implementing regulations and to amend the 1963 Public Order Act, which could be used to repress lawful and peaceful strikes.

The Committee noted the information provided by the Government representative that an Industrial Relations (Amendment) Bill, which amended a number of provisions objected to by the Committee of Experts, was now before Parliament under consideration by the relevant committee. The Government representative had indicated that the tripartite National Steering Committee on Social Dialogue for Swaziland had been established and a schedule of monthly meetings had been agreed. He had added that a Commission on Human Rights and Public Administration had been appointed in September 2009 to further strengthen the protection of human rights, including workers’ rights. Finally, the Government representative had repeated the previous statements made on the 1973 Decree/State of Emergency Proclamation and its implementing regulations and on the 1963 Public Order Act.

The Committee recalled that this case had been discussed on numerous occasions over the past ten years and that last year it had decided to include its conclusions in a special paragraph of its report. The Committee noted with concern the continuing allegations relating to acts of brutality by the security forces against peaceful demonstrations, threats of dismissal against trade unionists and the repeated arrests of union leaders, and firmly recalled the importance it attached to the full respect of basic civil liberties such as freedom of expression, of assembly and of the press and the intrinsic link between these freedoms, freedom of association and democracy. The Committee once again stressed that it was the responsibility of governments to ensure respect for the principle according to which the trade union movement can only develop in a climate free from violence, threats or fear and called upon the Government to ensure the release of any persons being detained for having exercised their civil liberties.

The Committee expressed the firm hope that the Industrial Relations (Amendment) Bill would be adopted in the very near future and that its provisions would be in full conformity with the Convention. Recalling that it was the Government’s responsibility to ensure an environment of credibility, the Committee urged the Government to take concrete and definitive measures without delay to effectively repeal the 1973 Decree and to ensure the amendment of the 1963 Public Order Act in order to fully comply with the requirements of Convention No. 87 so that they could no longer be used to prevent legitimate and peaceful trade union activities. The Committee urged the Government to accept a high-level tripartite mission in order to assist the Government in bringing the legislation into full conformity with Convention No. 87, to enquire into the May Day 2010 incident and to facilitate the promotion of meaningful and effective social dialogue in the country.

The Committee expressed the firm hope that the National Steering Committee on Social Dialogue for Swaziland would be immediately convened in order to achieve meaningful and expedited progress with respect to the issues raised. The Committee requested the Government to transmit detailed information in its next report due to the Committee of Experts, including on the progress made in the adoption of the Industrial Relations (Amendment) Act and the concrete steps taken on the pending issues. The Committee expressed the firm hope that it would be in a position to note tangible progress next year.

The Committee decided to include its conclusions in a special paragraph of its report.

Individual Case (CAS) - Discussion: 2009, Publication: 98th ILC session (2009)

A Government representative, Minister of Labour and Social Security, underlining the enduring value of freedom of association, protection of the right to organize and trade unionism, expressed unease at the selection of the case of the application of Convention No. 87 in Swaziland for examination by the Committee, given the steps taken by his Government to comply fully with ILO Conventions, mainly with ILO assistance. Nevertheless, it was a positive opportunity to share his country’s progress on applying the Convention with the Committee. Referring to allegations made by the International Trade Union Confederation (ITUC) and the Swaziland Federation of Trade Unions (SFTU) of harassment, arrest and detention of trade union leaders who had participated in a march and the presentation of a petition, he denied any such action by his Government. The Secretary-General of the SFTU, Mr Sithole, had indeed been questioned by police, but his fundamental constitutional rights had not been violated, nor had those of his family. His Government did not believe in threatening and harassing people, least of all for exercising their trade union rights. He explained that Mr Sithole had been questioned in connection with insulting statements made against the King of Swaziland at a march held in Johannesburg, South Africa, on 16 August 2008. The statements were close to constituting a criminal offence, and he suggested that any person making or connected with such statements could expect to be questioned by the police. On 21 August 2008, Mr Sithole had voluntarily presented himself for questioning at Manzini Regional Police Headquarters, accompanied by two other trade unionists, after officers, only two of whom were armed, had visited his home to invite him to do so, which was common police practice. It should be noted that there was no allegation that Mr Sithole had been threatened with a firearm. He had left after being interviewed for less than an hour, and although an offence had been suspected, he had been neither harassed, arrested or detained. The police had simply done its duty to enforce the laws of the land and ensure that no double standards existed. It was not a violation of trade union rights to question someone in connection with any perceived violation of the law, provided that such questioning observed the principles of justice. He stressed the need for accusations to be accompanied by evidence to substantiate them.

He noted that issues had also arisen with regard to trade unionism in the prison and police services and the fact that some individuals had exercised their constitutional rights and brought legal proceedings against the Government. Although they had lost an appeal regarding the formation of trade unions, the judicial ruling handed down had suggested that the Government should consider amending certain laws. The Government would review all laws in order to bring them into line with the Constitution, and the Tripartite Drafting Committee’s report on the Industrial Relations Amendment Bill had made some important proposals in that regard.

Turning to the allegation that the police had arrested several union leaders on their way to stage a peaceful protest action, thereby violating Convention No. 87, which Swaziland had ratified and incorporated into its domestic legislation, he expressed the view that the allegation was exaggerated. Swaziland had taken various legislative steps to ensure full compliance with international labour standards, including by monitoring and amending legislation as necessary, with ILO support. The allegation concerning serious violations of workers’ rights during a peaceful and lawful strike by textile workers, including beatings and shootings with live ammunition, contained serious factual inaccuracies. Workers had not been shot at using live ammunition, and there was no evidence to support such a claim. The complaint also omitted to state that the originally peaceful strike had deteriorated into violence, particularly against non-striking workers and the police. He refuted claims that the strike had been stopped by police brutality, and that police officers had stolen medical reports and warned doctors against issuing medical reports without police permission, as there was no evidence and the police was not authorized to do so. In fact, the striking workers had taken an independent decision to end the strike, which had by then lasted around a month. Despite provocation, the police, some of whom had sustained injuries during the course of their duties, had maintained law and order by applying only minimum force where necessary. With regard to the allegation that an unidentified worker had been drowned by police, he underlined the public expectation that the police would operate within the law. Anyone with evidence to support this allegation should pursue justice through the courts. Several allegations made, concerning shootings and death threats, also lacked any evidence to substantiate them and unduly portrayed tyranny by the police. It had also been alleged that workers engaged in protected strike action had been dismissed, which automatically constituted unfair dismissal under Swaziland law and could be costly for employers. The Government did not support such dismissals.

He drew attention to the increasing tendency of peaceful socio-economic protests to become violent, which went against the spirit of Convention No. 87. Under section 40 of the Industrial Relations Act, workers not engaged in an essential service were entitled to take part in peaceful protests to promote their socio-economic interests, but many such actions were hijacked by political groups to pursue their own agenda, which was often at variance with those of the workers concerned. Violence towards police and the public during such events was increasingly frequent and threatened public order. In such circumstances, the police was expected to carry out its mandate. He gave several examples of marches and other demonstrations that had ended in violence, including one scheduled to coincide with national elections in September 2008. The Government had denied permission for the demonstration to be held on the grounds that it was purely political, but the workers had gone ahead with their protest, seriously threatening the election process. Although the line between socio-economic and political matters was always thin, the protest in question had clearly been political in nature, as it had been aimed at regime change. It should also be noted that a demand for changes to the Constitution had already been tabled with the High-Level Steering Committee on Social Dialogue, in line with the recommendations of the ILO high-level mission to Swaziland in June 2006.

He emphasized that social dialogue had been welcomed in Swaziland, where much had been achieved in terms of its institutionalization. Lists of issues prepared by the social partners were discussed by committees within the structure. The Labour Advisory Board had recently reached agreement on the draft Industrial Relations Amendment Bill, and the proposed amendments covered most of the comments made by the ILO supervisory bodies. While he acknowledged that the process had taken time, that was only to be expected when tripartite consultation was involved. He outlined some of the proposed amendments, which demonstrated that the comments of the Committee of Experts and other bodies had been fully taken into account. In his view, the rights of workers received further support from the Constitution, the provisions of which prevailed over any other law. He reaffirmed his country’s commitment to observing the letter and spirit of all the ILO Conventions it had ratified, both in law and in practice, and looked forward to further cooperation with and support from the ILO.

The Worker members expressed the view that the case of Swaziland should be considered in the light of previous observations by the Committee of Experts and the ILO high-level mission in 2006, as well as the continuous, deliberate, systematic and well-calculated violations perpetrated by the State through various legislative acts. Recalling previous discussion of the application by Swaziland of Convention No. 87 and the direct contacts mission of 1996, they said that persistent violations of the Convention had prompted the ILO to send a high-level mission to the country to review the impact of its Constitution on the rights of workers and to make suggestions for a meaningful framework for social dialogue in the light of steps already taken. The high-level mission had noted a number of laws that were interfering directly with the operation of trade unions and civil society in general and had requested the Government to keep it informed of the progress made in a number of areas. The mission had held meetings with interested parties at all levels, from the Prime Minister to civil society groups; however, neither the direct contacts mission nor the high-level mission had persuaded the Government to fulfil its obligations. They added said that the Government had claimed to have submitted a copy of the Media Council Bill to the ILO, but that it had not done so. The Bill placed statutory restrictions on the nomination of union candidates and their eligibility for office, in direct contradiction with the aims and objectives of Convention No. 87. In response to calls from the ILO supervisory bodies to amend certain sections of the Bill, the Government had asserted that it needed more time. With regard to provisions allowing employers to dismiss workers during a strike, the Government had claimed that they were intended to act as a deterrent for workers against flouting striking procedure before a strike. Many other laws contained similar provisions, but no action had been taken on the recommendations made by the high-level mission. Despite various ILO missions to Swaziland, the arrest, detention and brutalization of trade union members, human rights defenders and peaceful demonstrators continued. Workers engaged in lawful strikes in the textiles industry had been dismissed and protesters had been maliciously attacked, in clear violation of workers’ rights. Swaziland had voluntarily ratified Convention No. 87 and was therefore obliged to recognize the trade union freedoms provided for therein, implementing the letter and spirit of the Convention in law and practice. They outlined various measures taken against trade unionists by the police, which demonstrated that no pluralism was accepted in Swaziland. The autocratic governance system was stifling civil society, including trade unions. Workers suspected that the Government of Swaziland was maliciously resisting the right to freedom of association by prison staff, denying them even the possibility of forming a trade union, in part because of acts committed against incarcerated trade unionists.

Expressing the view that decrees had always been used to circumvent the law-making process and only served the interests of the authorities, they affirmed that, if the practice were allowed to become a way of life, workers in Swaziland would never enjoy democratic values in their workplaces. The ILO had always encouraged its member States to engage in social dialogue in order to ensure that workers’ rights were guaranteed. In that regard, they highlighted the punitive effects on Swaziland’s workers of various acts and decrees that remained in force. In an echo of the country’s colonial past, the police forced themselves into trade union meetings and conferences. In its current form, the Industrial Relations Act was divisive and unnecessary, particularly given that the Southern African Development Community was encouraging its members, which included Swaziland, to harmonize their laws with a view to comprehensive regional economic integration. They recalled that the Committee of Experts had duly noted the previous tripartite undertaking to establish a special consultative tripartite subcommittee within the framework of the High-Level Steering Committee on Social Dialogue, the purpose of which was to review the impact of the Constitution on the rights embodied in Convention No. 87 and to make recommendations to the competent authority to eliminate discrepancies between existing provisions and the Convention. This had been promulgated in October 2007, with notice given of the appointment of members of the Steering Committee. However, the initiative had failed to obtain any result. There was still no sign of commitment to a programme to review laws and, if anything, the situation was worsening. They emphasized that the Government of Swaziland did not exist in isolation, but had to coexist with its citizens. Arrest, detention and other forms of oppression and suppression did not present a good image of Swaziland. Its decrees contradicted peace-making, yet peace and social justice were at the foundation of the ILO and were the desire of all humanity. The Government of Swaziland seemed intent on continuing to inflict pain on its workers, throwing the concept of social dialogue out of the window. The establishment of a functioning tripartite structure and a subcommittee to examine the Constitution and the concept of constitutionalism was fundamental to ensuring genuine democracy in the world of work. They cautioned against referring to regime change in the context of sub-Saharan Africa, given the unfortunate connotations of the phrase. The basic rights of workers had nothing to do with regime change. The statements by the Government representative on several issues served only to support the workers’ case against the actions of the Government, the police and other bodies. Trade unions had evidence of the arrest and torture of a number of individuals, but they raised the question of what action the Government would take. Even as the Committee continued its deliberations, the Government was preparing to approve new laws that would have a detrimental effect on workers’ rights.

The Employer members were sceptical about the progress alleged by the Government of Swaziland. National legislation had basically remained unchanged since the first examination of the case in 1996, and the 50 per cent threshold for workers to organize did not constitute progress, since it was far too high. The present case constituted a seamless history of repression of free speech, police brutality and oppression. The Employer members expressed their disbelief in the Government’s statement that the issues raised would be solved, and raised serious doubts as to the possibility that the situation could improve in the near future.

The Government member of Norway, speaking on behalf of the Government members of the Nordic countries, Denmark, Finland, Sweden and Norway, stated that the human rights situation in Swaziland, including the right to organize and to arrange and participate in legal strikes in accordance with Convention No. 87, was a long-standing case and had been discussed by this Committee several times. She took note of the allegations of repercussions on trade union activists and of the dismissal of workers who had taken part in lawful industrial action. She expressed concern that the ITUC had also reported serious acts of violence and brutality by the security forces against trade union activists and leaders. She called on the Government to respond to these allegations in detail. Her Government also noted that the Committee of Experts had once again highlighted the non-conformity of some of the laws with Convention No. 87. While the Committee of Experts had acknowledged that the Industrial Relations Amendment Bill had taken into account some of its comments, certain issues still remained unaddressed. Among others, the national legislation still did not provide for the right of workers to organize and to take lawful industrial action, as provided for in the Convention. She urged the Government of Swaziland to continue to make use of the technical assistance of the Office to bring the legislation into conformity with Convention No. 87 and to provide detailed information regarding the reported acts of violence against trade union activists and those who had participated in lawful and peaceful strikes.

The Worker member of Swaziland stated that, unfortunately, Swaziland was again listed among the countries violating Convention No. 87. For over ten years, the Government had been advised by the ILO not to use the 1963 Public Order Act and to repeal the 1973 State of Emergency Decree. However, the 1963 Act continued to be applied and the Government had stated that the contents of the 1973 Decree had been included in the new Constitution. As a result, the new Constitution, like the 1973 Decree, did not respect the doctrine of the separation of powers, banned political parties and provided for a very limited Bill of Rights. He referred to a number of examples of continued gross violations of the Convention by the Government, such as the arrest and detention of a number of textile workers, mostly women, who had participated in a legal strike, some of whom had been severely injured by the police; the detention and interrogation by the police of trade union leaders and other workers who had participated in marches in Sandton and Johannesburg to deliver a petition at the SADC Summit; the interception of workers by the police in a lawful demonstration in September 2008; and the interference by the police in other events organized by workers and arrests of activists. He added that certain political parties had been banned under the Suppression of Terrorism Act, and that a Bill on Public Servants was being prepared by the Government without consulting the tripartite Labour Advisory Board. In conclusion, he said that the system of governance in Swaziland was profoundly anti-democratic, economically unjust and socially discriminatory. The Government systematically evaded the only tool of conflict management, which was social dialogue accompanied by ILO technical assistance.

The Employer member of Swaziland indicated that the Tripartite Drafting Committee had completed its work, and that the Bill had recently been adopted by the Labour Advisory Board. All the issues raised by the Committee of Experts had been adequately addressed. With regard to the application of the Convention in practice, she indicated that she was not aware of any dismissal of workers engaged in lawful strikes, but if that were the case, the Swaziland Industrial Court was the competent authority to review such cases of violation and to effectively punish the employers found guilty of infringing workers’ rights. She urged all members of her Federation to comply with the law in this respect. Generally speaking, employers were not always in favour of strikes because of their negative impact on the economy and business in general. A significant number of strikes and protests were due to reluctance to engage fully in social dialogue. While the Government of Swaziland was committed to social dialogue, progress was desperately slow, and the recently established infrastructures were not frequently utilized. However, in the context of the current economic meltdown, it was only through social dialogue that a country could forge a way forward.

The Worker member of South Africa recalled that the Committee of Experts had been examining this case for several years and that, despite the Government’s commitment to achieve progress, the situation had not improved in practice. The adoption of the Industrial Relations Act in 2000 had appeared to be a positive step. However, the Government was still applying the state of emergency legislation, such as the Public Order Act of 1963 and section 12 of the Decree of 1973 on trade union rights, against workers and their organizations, thereby violating civil freedoms. Since 1973, the current Government of Swaziland had been ruling the country through the use of force, impunity, absence of social dialogue, lack of the rule of law, brutality against citizens engaged in peaceful demonstrations and failure to respect the judicial authorities. In May 2008, the Parliament of Swaziland had passed a controversial Act empowering the Prime Minister to declare virtually anyone or anything a terrorist activity. The Parliamentary elections of September 2008 had been declared by the Pan-African observation mission as infringing basic democratic rights, and a Commonwealth expert team had made recommendations for constitutional reform to ensure political pluralism. It would not be possible to note tangible progress until the Industrial Relations Act and the Terrorism Act were repealed, the arrests and detention of political and trade union leaders discontinued and the constitutional review enabling the people of Swaziland to democratically choose their Government undertaken and genuine, meaningful and result-oriented social dialogue aimed at achieving socio-economic justice, decent work and proper governance introduced. Trade union and political activists who feared for their lives were currently taking refuge in neighbouring South Africa. The case of Swaziland should therefore be mentioned in a special paragraph.

The Worker member of Botswana emphasized that the monarchy was circumventing the Bill of Rights enshrined in the Constitution by bringing back the 1973 State of Emergency Decree through the backdoor with the introduction of the Suppression of Terrorism Act of 2008. This Act removed all the fundamental rights guaranteed in the Constitution and the Universal Declaration of Human Rights which provided for the basic freedoms of opinion, expression, association, belief and conscience. He expressed surprise and dismay that Mario Nasuku and Thulani Naseko had been arrested. Mario Nasuku, the leader of the People’s United Democratic Movement (PUDEMO), was facing charges in connection with terrorism, or alternately sedition. Thulani Naseko, a human rights lawyer, was alleged to have made seditious statements on May Day in 2009. Their arrest and that of others was a clear indication that there was no freedom of association and expression in Swaziland. Jan Sithole, Secretary-General of the Swaziland Federation of Trade Unions, was an example of a trade union activist who had been subjected to torture and harassment by the security forces. He condemned the arrests of Mario Nasuku and Thulani Naseko and called for their immediate and unconditional release. He also called on the ILO to assist the Government with its legislative reform and emphasized that strike action was a way of exercising freedom of expression.

The Worker member of Senegal recalled that the case of Swaziland had been discussed several times by the Committee, and that both the Workers and the Employers had always emphasized the seriousness of this case. The comments of the Committee of Experts were still a matter of concern despite the severe conclusions adopted by the Conference Committee for many years. The Government had ratified the ILO Conventions, but always found ways to evade its obligations, and workers were still denied their basic right to organize in full freedom. In his view, the Government’s silence in relation to the requests of the Committee of Experts demonstrated its desire to evade its obligations. He endorsed the regrets expressed by the Committee of Experts concerning the Government’s persistent refusal to amend the legislation of 1973, which had established a state of emergency that had lasted for over 36 years and used public order as a pretext to suppress legitimate and peaceful strikes. The Government seemed to have forgotten the public social order and its responsibility to ensure the implementation of the Convention. He considered that the case needed to be classified as a continued failure to apply the Conventions on freedom of association. He recalled the extreme gravity of the situation in practice, as testified by Mr Sithole during a visit to Senegal. Such a situation merited the inclusion of the case in a special paragraph of the Committee’s report.

The Worker member of Germany, speaking on behalf of the Worker members of the European Union, referred to the relations between the European Union and Swaziland, which were based on the Cotonou Agreement and the South African Development Community (SADC) Agreement. The EU high-level mission to the country in May 2009 had noted that the Human Rights Commission had still not been set up and that the Constitution had not yet been amended. The mission had also noted that freedom of assembly was not guaranteed, that the Terrorism Act was utilized to prohibit demonstrations by civil society, including trade unions, and that murders and torture of members of civil society were not prosecuted. She added that the Cotonou Agreement represented the give and take of development aid versus democracy and human rights. As illustrated above, Swaziland had not taken steps forward, but rather backward. The Worker members of the European Union expected the European Union to draw the obvious conclusions from the lack of noticeable progress in respect of democracy and human rights. This was not about stopping development aid for Swaziland. However, the European Union should demand that the Government of Swaziland respect its commitments under the Cotonou Agreement and implement the recommendations of the EU high-level mission.

The Government representative of Swaziland was encouraged by the constructive comments made by some of the members and wished to assure the Committee that all comments would be given due consideration. Since he had already covered most of the comments in his main statement, he refrained from repeating them. Although this was not the first time that Swaziland had appeared before the Committee concerning this Convention, he reiterated that this did not imply that nothing had been done in this regard. Significant progress had been made on legislative reform aimed at ensuring future compliance. In this regard, the Industrial Relations Act of 2000 had been amended several times since its promulgation and other amendments were under way. This had been achieved with the full participation of the social partners and the assistance provided by the ILO. With regard to social dialogue, the Kingdom of Swaziland had established a high-level national social dialogue committee consisting of cabinet ministers, legislators, members of the business community as well as workers. He wished to report to this Committee that Swaziland’s tripartite partners had identified and agreed on the development of a Decent Work Country Programme and on a centralization of social dialogue to attain decent work objectives. Social dialogue was also to be used as the entry point for ILO technical assistance. The Government was committed to working with the social partners to achieve their national objectives and to improving the quality of life. ILO technical support was necessary to be able to complete the development of the social dialogue initiative that had been started in Swaziland. The proposed draft legislative amendments had been submitted to the ILO as per normal practice. The Ministry had set up a programme to have the drafts passed by the relevant legislative authorities and would report on progress to the Committee of Experts in November 2009.

The Worker members recalled that the Committee had decided in 2005 on a high-level mission to Swaziland, following which a Tripartite Agreement had been signed in 2007. However, not a single step had yet been taken to implement the Agreement and in the past two years the situation of trade unions and of all fundamental human rights, in particular under the provisions of the Terrorism Act, had worsened. There was no social dialogue in Swaziland and the Government needed to take effective steps to implement the 2007 Tripartite Agreement. The most immediate steps to be undertaken concerned the review of the Constitution to bring it into compliance with the provisions of Convention No. 87 and the issuing of recommendations to the relevant authorities to eliminate discrepancies in both law and practice with Conventions Nos 87 and 98, taking into account the comments of the ILO supervisory bodies. They asked to be kept informed of the progress of tripartite dialogue in the assessment of the Public Sector Bill and requested that the Government be asked to report back to the Governing Body in November 2009. They called for the repeal of the Terrorism Act. The Office had to offer technical cooperation to the Government of Swaziland in order to bring the Constitution as well as the Public Order Act of 1963, the Decree of 1973 and the Industrial Relations Act into line with ILO Conventions. Furthermore, they called on the Government to immediately and unconditionally release Mario Masuku and Thulani Maseko. The Government also needed to end the brutality directed against trade unionists and other human rights defenders, stop the violent suppression of peaceful rallies and civic actions, respect human rights and immediately act to end the impunity of those responsible for anti-union repression. In view of the long history of violations and the current situation, they called for this case to be included in a special paragraph. As all trade unionists from Swaziland present at the Conference risked becoming victims of persecution when returning to the country, they asked the Office to remain vigilant and to undertake measures to assure their safety and ongoing protection.

The Employer members noted the consensus within the Committee that there was a lack of social dialogue. In paragraph 62 of its report, the Committee of Experts had highlighted the need for technical assistance in this case. It was clear that technical assistance would be valuable, considering that the case had a long history with no progress. It was evident that since the first discussion of this case in 1996, the Government knew what needed to be done, yet had not done it. The Employer members agreed with the proposal by the Worker members that the conclusions of this case needed to be included in a special paragraph in order to highlight the need for the Government to finally implement Convention No. 87, including adhering to freedom of speech and social dialogue and preventing police repression. The Government needed enact to promptly the necessary legislation to adequately address the issues identified by the Committee of Experts.

Conclusions

The Committee took note of the statement made by the Government representative and the debate that took place thereafter.

The Committee observed that the comments of the Committee of Experts had referred for many years to the need to repeal the Decree/State of Emergency Proclamation and its implementing regulations and the Public Order Act, as well as to restrictions to the right to organize of prison staff and domestic workers, the right of workers’ organizations to elect their officers freely and the right to organize their activities and programmes of action.

The Committee took note of the Government’s detailed reply in relation to the allegations of arrest and detention of the Secretary-General of the Swaziland Federation of Trade Unions (SFTU). While the Government acknowledged that the police had called Mr Sithole to headquarters for questioning in relation to serious insults allegedly made in respect of the King in his presence, the Government representative insisted that this had nothing to do with his trade union activity and he had not been detained any further. The Government representative had provided further information in relation to the other allegations and, while admitting that some elements were true, he had stressed that there were also serious inaccuracies. He had also indicated that the request for change of the national Constitution had already been tabled with the High-level Steering Committee on Social Dialogue, as requested by the 2006 ILO high-level mission. He had further indicated that a draft law within the framework of the Labour Advisory Board amended some provisions objected to by the Committee of Experts and would be put before Parliament this year. Finally, the Government representative stressed that workers rights were fully guaranteed by the 2005 Constitution.

The Committee noted with concern the Government’s reply to the allegations submitted by the International Trade Union Confederation (ITUC) to the Committee of Experts concerning the acts of violence carried out by the security forces and the detention of workers for exercising their right to strike, and felt itself obliged to recall the importance it attached to the full respect of basic civil liberties such as freedom of expression, of assembly and of the press. The Committee stressed that it was the responsibility of governments to ensure respect for the principle according to which the trade union movement can only develop in a climate free from violence, threat or fear and called upon the Government to ensure the release of any persons being detained for having exercised their civil liberties.

The Committee regretted that, although the Government had benefited from ILO technical assistance for some time now, including through a high-level mission, the legislative amendments requested for many years have yet to be adopted. The Committee urged the Government to take the necessary measures so that the amendments requested by the Committee of Experts were finally adopted.

Noting with concern that the Special Consultative Tripartite Subcommittee of the High-level Steering Committee on Social Dialogue had not met for several months, the Committee, stressing the importance of social dialogue, particularly in these times of economic crisis, urged the Government to reactivate the Subcommittee as a matter of urgency. It further highlighted its outstanding calls to the Government to repeal the 1973 Decree, to amend the 1963 Public Order Act, as well as the Industrial Relations Act, and expressed the firm hope that meaningful and expedited progress would be made in the review of the Constitution before the Steering Committee on Social Dialogue, as well as in respect of other contested legislation and bills. The Committee offered the continuing technical assistance of the Office in regard to all the above matters. The Committee requested the Government to transmit a detailed report to the Committee of Experts for its meeting this year containing a time-line for resolution of all the pending questions. The Committee expressed the firm hope that it would be in a position to note tangible progress next year.

The Committee decided to include its conclusions in a special paragraph of its report.

Individual Case (CAS) - Discussion: 2005, Publication: 93rd ILC session (2005)

A Government representative said that his country was listed among the 25 countries whose delegates had been invited to supply information to the Conference Committee. In this respect, he expressed deep concern at the still unclear method of listing countries for discussion concerning the application of ratified Conventions adopted by the ILO. He recalled the statements made by certain delegates during the general discussion and called for a more fair and transparent system so that countries could be selected on the basis of scientific criteria that would render the process more just and clear to all delegations. In view of all the positive steps that had been taken to give effect to Convention No. 87, his Government had expected that at least a case of progress would have been recorded with respect to Swaziland.

He emphasized that, while Swaziland had appeared before the Committee on a number of occasions, the country had obviously taken significant steps to implement the Convention in practice, in consultation with the social partners and with the assistance of the ILO. As such, Swaziland had been able to build the necessary confidence with regard to freedom of association and the right to organize. However, he indicated that most of the allegations made in the Committee of Experts' observation were based on incorrect facts and a mistaken assessment of the situation, and should therefore be challenged.

Firstly, with respect to the comments of the Committee of Experts relating to the alleged death of a trade unionist during a protest march organized by Swazi labour federations on the occasion of a meeting of the Commonwealth countries in Mbabane in August 2003, he admitted that there had been an instance where violence had ensued during the protest, but he strongly denied that a trade unionist had died on that occasion. He explained that an agreement had been reached between the authorities and the organizers of the action with respect to the designated areas where it could be held, due to security reasons related to the presence of the Heads of State attending the Commonwealth meeting. Although the protest action had started peacefully, a confrontation had occurred when an attempt had been made to leave the designated area. However, he affirmed that no trade unionist had died and no such death had been reported by the media or by the leadership of the trade unions. His Government aligned itself fully with the view expressed by the Committee of Experts that, whenever a trade unionist died in a protest action, a commission of inquiry should be set up, and he invited the ILO, ICFTU and SFTU to take part in such a commission so that the country's name could be cleared.

Secondly, with respect to the exclusion of prison service staff from the scope of the Industrial Relations Act, he indicated that the prison service consisted of 1,300 employees. He assured the Committee that his Government had not remained indifferent to the comments made by the Committee of Experts on this issue in the past and that it had undertaken a critical analysis of the prison service in order to assess how best compliance with the obligations under the Convention could be achieved. Nevertheless, his Government had come to the conclusion that, in the context of Swaziland, as in the case of many other small developing countries, the prison service should in fact be considered as an "armed force" and did not therefore fall within the scope of the Act, in the same way as the police service and the army. Moreover, it should be noted that the staff in the prison service had not been disadvantaged in respect of wages and conditions of employment, especially when compared to other civil servants belonging to the Swaziland National Association of Civil Servants (SNACS), the Swaziland National Association of Teachers (SNAT) and the Swaziland National Nurses Association (SNA), because the outcome of the negotiations undertaken by these associations had to be applied to the entire civil service.

Thirdly, with respect to the application of section 40(13) of the Industrial Relations Act respecting charges against trade union leaders, he indicated that this section had been amended by the Industrial Relations Amendment Act, No. 8, of 2000, with the full participation of the social partners and in consultation with the ILO. Legal charges against trade union leaders could now only be brought in cases of criminal activities, and malicious and grossly negligent acts. This should therefore no longer be an issue and he wondered why it was still being raised by the Committee of Experts.

Fourthly, turning to the points raised in the Committee of Experts' observation with respect to the process and outcome of the drafting of the Constitution, he stated that the process had benefited from assistance from the Commonwealth and the European Union, and that the draft text would be reviewed by both Houses of Parliament in August 2005. He firmly believed that the draft Constitution would comply with the country's international obligations under the Convention. Part IV on fundamental rights and freedoms provided for: (a) freedom of conscience, expression and of peaceful assembly and association and movement; and (b) respect for the rights of workers. It was clear that a conscious decision had been taken to protect these rights in line with the Decent Work Agenda. The draft text of the Constitution would be made available to the Office and could be consulted on the Government's web site www.gov.sz .

Fifthly, he referred to the comments of the Committee of Experts on the length of time taken in attempting to settle a dispute before an organization could embark on a lawful strike action. He was pleased to report that his Government had relied on tripartite dialogue and ILO technical assistance to amend the Industrial Relations Act. The amendment would enter into force in August 2005. One of the highlights of the amendment was that it sought to cut drastically the dispute resolution period by encouraging the direct reporting of disputes to the Conciliation, Mediation and Arbitration Commission. He expressed the belief that reasonable flexibility should be afforded to the social partners to engage in meaningful dialogue and resolve their disputes amicably. If the tripartite partners still felt that the Act did not comply with the obligations concerning strike action, his Government would be pleased to work with them and the ILO to rectify the situation.

Finally, with respect to the allegations made concerning a Bill to regulate internal security, he stated that there was no record of such a Bill, although a proposal had been submitted in the past but had been abandoned four years ago. No such Bill was currently being discussed in Parliament.

In conclusion, he said that his Government was willing to work with the ILO to achieve the full compliance of its law and practice with the obligations under Convention No. 87.

The Worker members thanked the Government representative for his intervention and the information provided. The Committee was examining the case of Swaziland for the eighth time in 10 years. On several occasions, the Government had committed itself to achieve progress. However, even though some progress had indeed been achieved, the situation was very different in practice. The adoption in 2000 of the Industrial Relations Act had appeared to be a positive step. However, despite the adoption of the Act, the Government was still making use of laws on the state of emergency against workers and their organizations, namely the Public Order Act, 1963, and section 12 of the Decree of 1973 on trade union rights, which had repealed the Declaration of Rights and was contrary to all civil freedoms. Since 1973, the current Government of Swaziland had been running the country through the use of force, impunity, the lack of social dialogue, denial of the authority of the law, ignoring dissidents, brutality against citizens engaged in peaceful demonstrations and failure to respect the judicial authorities.

Once again, the Committee of Experts had referred to several serious violations of Convention No. 87. In the first place, the national legislation did not afford prison personnel the right to organize. In this respect, the Committee of Experts recalled that, under the terms of Article 2 of the Convention, workers, without distinction whatsoever, had the right to establish and join organizations of their own choosing without previous authorization. Once again, the Government had indicated that it planned to include the prison services within the scope of the Industrial Relations Act. Nevertheless, in view of its record, it was difficult to believe that it would keep its promise.

Secondly, the Committee of Experts had once again raised the issue of the length of the compulsory procedure for the settlement of disputes envisaged before strike action could be taken, which was too long and particularly intricate. A procedure of this nature was in violation of Article 3 of the Convention and was intended to discourage any strike action. It was clear that such provisions were unacceptable as they were in violation of fundamental human freedoms. The Government had once again indicated that it was planning to reduce the length of the procedure. However, once more, in view of its record, it was difficult to believe that it would keep its promises.

In the third place, with regard to the possibility envisaged in the Industrial Relations Act to take civil action against federations, trade unions and individuals who participated in protest actions, the Worker members said that such a procedure was a violation of their rights and might expose them to costs which would have the effect of dissuading them from exercising their trade union rights. In this respect, the Government had indicated that the issue of legal action had not arisen. However, it had not provided information on the application of the law in this regard.

Fourthly, the Committee of Experts had once again indicated that the Public Order Act, 1963, and section 12 of the 1973 Decree, abolishing trade union rights, still appeared to be in force. It had requested the Government to keep it informed of the procedure for the drafting of a national Constitution which would accord with international standards and would guarantee respect for trade union rights, and repeal the above Decree. However, the Government had not provided information on this subject.

In the fifth place, according to the information provided to the Office by the ICFTU, the police had dispersed a demonstration in August 2003, making use of violence, and a trade unionist had been killed. In this respect, the Committee of Experts had recalled that freedom of assembly was one of the fundamental trade union rights and that the authorities should refrain from any action likely to restrict this right. It had also called for the holding of an independent judicial inquiry into the case of a participant in the union demonstration who had been killed during the demonstration. It was to be hoped that the Government representative would propose the holding of such an inquiry.

The Committee of Experts had also requested the Government in its observation concerning Convention No. 98 to adopt specific provisions setting out sufficiently effective and dissuasive sanctions to protect workers' organizations against acts of interference by employers or their organizations.

With a view to ensuring the implementation of Convention No. 87, the legislation prohibiting the right to organize of prison staff, the procedure for the settlement of disputes and the 1973 Decree on the rights of organizations needed to be amended or repealed. The fundamental problem in the case of Swaziland was the 1973 Decree on the rights of organizations. This problem was all the more important as the process of the adoption of the Constitution seemed to have been suspended.

In conclusion, the Worker members requested the Government to allow civil society and trade union federations to participate in the drafting of the new Constitution. Furthermore, the draft Constitution should be submitted to the Committee of Experts or, in view of the tight deadline, it would be desirable for an ILO mission to visit the country to provide advice on the draft text. This would make it possible to establish a framework for social dialogue.

The Employer members, after thanking the Government representative for the information provided, emphasized that free speech was a fundamental element of freedom of association. They therefore urged the Government to ensure that the restrictions that were currently placed on free speech were lifted. Referring to the process of the development of the Constitution, which had been under way for several years now, they noted that Decree No. 4 discouraged group submissions, thereby undermining any proper process of consultation. It was of great importance that the provisions of the Constitution were aligned with the obligations set out in the Convention. For this purpose, it would be very valuable if the draft of the Constitution could be analysed by the Committee of Experts and therefore the Government should provide the text of the Constitution once it had been finalized. The paradox in the present case was that the basis for social dialogue appeared to be in place but not used in practice. The Employer members, therefore, urged the Government to build on this platform with the technical assistance of the ILO.

The Worker member of Swaziland responded to the statement by the Government representative, by stating that in Swaziland there was a disregard for the rule of law, extravagance in the face of poverty, a major HIV/AIDS problem, lack of democracy, officially-sponsored violence and poor governance. There was also an attempt to vilify the spokespersons of organizations which had access to the international media.

Swaziland had been ruled by emergency decree for 33 years, there were no political parties, all power was invested in the head of state, and there was no separation of powers.

There had been gross violations of Convention Nos. 87 and 98, arrests of labour leaders and even the death of a young girl at a demonstration. Amnesty International had also reported deaths in prison cells. It was only under great pressure that the Government had acceded to the new Labour Law in 2000. However, there had been no significant improvement in practice, implementation or enforcement. The country had a record of ratifying human rights related conventions and treaties, but was one of the worst violators of these instruments.

The speaker noted that this was the eighth time that Swaziland had appeared before the Conference Committee since 1996 for flagrant disregard and violation of Conventions Nos. 87 and 98 that it had ratified in 1978. The Conference Committee and the Committee of Experts had urged that Swaziland conform with the letter of these Conventions by allowing the police and prison staff to form and join associations of their choice; shortening the process for allowing a lawful strike; addressing section 40(13) of the Industrial Relations Act, making unions liable for losses suffered, if the loss happened during a legal protest; and refraining from use of the public order decrees of 1963 and 1973. The Government was also called on to lay the Security Bill before the Committee of Experts before it passed into law. However, the spirit of the Bill had been incorporated into the Constitution Bill to be shortly adopted by Parliament. The Constitution Bill limited freedom of expression and association, as well as denying a role to political parties in the governance of the country. All powers would be vested in the King.

The speaker therefore demanded that the Government allow police and prison staff freedom of association and collective bargaining rights; shorten the dispute process; remove the liability clause from the Industrial Relations Act, 2000; repeal sections 11, 12 and 13 of the 1973 Decree; repeal the 1963 Public Order Act; repeal section 4 of Decree No. 2 of 1996; engage in social dialogue and allow civil society to participate before finalizing the Constitution Bill; lay the Constitution document before the Committee of Experts to ensure conformity with Conventions; and provide a progress report to the Governing Body in November 2005.

The speaker stated that the people of Swaziland looked to the Committee to deliver human rights, social justice and human dignity.

The Government member of Namibia thanked the Government representative for the information supplied on the comments of the Committee of Experts. It was noteworthy that positive steps have been taken by the Government of Swaziland to give effect to the comments of the Committee of Experts and to adopt legislative amendments that would be in conformity with the provisions of the Convention. The speaker commended the Government for its willingness to cooperate with the social partners and the ILO on this specific subject.

The Government member of Nigeria recalled that the Government representative of Swaziland had in his response informed the Conference Committee that his country was prepared to set up a commission of inquiry, if there were sufficient facts that a trade unionist had lost his life during the noted protest. This was enough evidence that the Government of Swaziland was prepared to work with the ILO in implementing the provisions of the Convention, and with regard to the protection of the lives of trade unionists in that country. Based on the intervention of the Government representative it was clear that there was not only the political will for implementation of the provisions of the Convention, but also to listen to the ILO on issues that pertained to the fundamental rights of trade unionists. The speaker requested that the Conference Committee encourage the Government in its continued efforts to amend and improve other areas that had yet to be worked on.

The Government member of Cuba highlighted the measures taken by the Government and invited it to report whether prison staff enjoyed the right to freely associate in trade unions, bearing in mind that if they were armed forces or police personnel they could be excluded from the application of the Convention. Finally, the speaker pointed out that the Government could take advantage of ILO technical assistance.

The Government member of South Africa welcomed the Government of Swaziland's proposed and apparent improvements mentioned by the Government representative. The speaker stated that the Government had requested technical assistance and further noted that it should be provided to the Government. He called on the Government to engage in social dialogue with its social partners.

The Government representative thanked all speakers for their contributions, which would be taken into consideration as far as they related to the Convention. The future Constitution was in line with Swaziland's international obligations. He reiterated that the Internal Security Bill was no longer pursued and that the Government was encouraged by the assistance provided by the ILO and other countries with a view to promoting social dialogue. They would continue to work towards full application of the Convention.

The Worker members stated that this Committee turned back to the violations of freedom of association in Swaziland almost in every session and that as long as the Committee of Experts would indicate that these serious violations remained, the Committee would not have a choice but to discuss the case once again, and insist that the Government bring its legislation and practice into conformity with the Convention. They recalled that what was expected of the Government was to modify the law prohibiting the right to organize for prison staff; reform the procedure required for strike action to be taken, which was too long and onerous; abrogate the Decree of 1973, which suppressed trade union rights. They also considered that the draft new Constitution should be submitted to consultations with the social partners, or analysed by the Committee of Experts, with regard to its conformity with international labour standards before its adoption.

The Worker members envisaged the dispatch of a high-level mission with the participation of experts, a mission which could bring to light information on the death of a person during the protest of 2003. They specified that a refusal to accept such a mission would justify, in their view, the inclusion of this case in a special paragraph of the report, as a case of continued failure to implement the Convention.

The Employer members recalled that it was of fundamental importance that the Government fully implement social dialogue and address the discrepancies between the Convention and its law and practice as noted in the observation of the Committee of Experts. The Employer members had the impression that the Government had not been totally transparent in terms of the information provided to the Conference Committee and the Committee of Experts and emphasized in this respect the need for the Government to provide a detailed report to the Committee of Experts on the action taken in respect of the discrepancies noted with regard to the implementation of the Convention. The Employer members associated themselves with the proposal made by the Worker members for a high-level mission aimed at establishing a social dialogue framework in the country and examining the possible impact of the new Constitution on the implementation of the Convention in law and in practice. They doubted that the Government representative had authority to agree to a mission today, but urged the Government to agree to such a high-level mission before next year.

The Committee took note of the statement made by the Government representative, as well as the discussion that followed. The Committee recalled that this case had been discussed on numerous occasions over the past ten years. The Committee observed that the comments of the Committee of Experts referred to the right to organize of prison staff and various aspects of the right of employers' and workers' organizations to organize their activities without government interference.

The Committee noted the statement made by the Government that no deaths had occurred during the protest action referred to in the Committee of Experts' report. With regard to the right to organize of prison staff, the Government had indicated that it was reviewing the matter and hoped that it would soon be resolved. With regard to the constitutional process, the Government had stated that Parliament was currently debating the question and the Constitution would be made available to the Committee of Experts once it was promulgated. Finally, the Government had stated that the internal security Bill had been abandoned four years ago and was no longer an issue.

The Committee noted with regret that the 1963 Public Order Act and the 1973 Decree on the rights of organization, upon which the Committee of Experts had been commenting for many years, were still in force and invoked by the Government. Moreover, the Committee noted the serious concerns raised in respect of the Decree which prohibited any involvement by civil society in the drafting process of the new Constitution and its content.

The Committee recalled that social dialogue was a fundamental aspect of the full implementation of the Convention. It urged the Government to hold full and meaningful consultations with the most representative employers' and workers' organizations, and civil society as a whole, on the draft Constitution and to ensure that none of its articles would have the effect of contravening the Convention, and that its adoption would result in the effective repeal of the 1973 Decree and of Decrees Nos. 11, 12 and 13 adopted under the terms of that Decree. It further requested the Government to take the necessary measures to eliminate the remaining discrepancies between the law and practice and the Convention. The Committee requested the Government to provide detailed information in its next report to the Committee of Experts on all the measures taken in this regard and to provide a copy of the Constitution so that the Committee of Experts could examine its conformity with the Convention. The Committee also urged the Government to accept a high-level mission to establish a meaningful framework for social dialogue and to review once again the impact of the Constitution on the rights embodied in the Convention.

Individual Case (CAS) - Discussion: 2002, Publication: 90th ILC session (2002)

A Government representative thanked the ILO for the technical assistance it provided his Government which had resulted in the adoption of an amended Industrial Relations Act. He wanted to indicate at the outset that his Government had also taken steps to initiate social dialogue in the country, as had been urged by the Committee of Experts.

He recalled that the Committee of Experts had raised two questions in respect to the application of the Convention, in his country. The first concerned the right to organize of the prison staff in defence of their economic and social interests. The second concerned the dispute resolution procedures which accoring to the Committee of Experts were too long. The adoption of the amended Industrial Relations Act incorporating changes under sections 40(13) and 52 as a result of the technical assistance received from the ILO, had been noted with interest by the Committee of Experts.

In respect of the request of the Committee for the amendment of the legislation in order to decrease the length of compulsory dispute settlement procedures provided in sections 85 and 86, read with sections 70-82, of the Industrial Relations Act, he indicated that the purpose of the dispute settlement procedure was not to prohibit strikes, but to permit alternative resolution of the question before resorting to the ultimate measure of a strike. He recalled that no law was perfect and that these provisions were not engraved in stone. He hoped that this Committee, as well as the Committee of Experts, would appreciate the efforts his Government was making to conform to the requirements of the Convention. He requested the Office to assist the Governmen by providing a copy of the General Survery on Freedom of Association of 1994.

The Employer members stated that this case was a familiar one that the Committee had been discussing since the mid-1980s and every year since 1996. They indicated that there were three issues involved. The first concerned the lengthy procedure and complicated balloting requirement to hold a peaceful protest. The Committee of Experts had noted with interest the changes made in the Government's laws in both respects and requested reports on the practical application of section 40 of the Industrial Relations Act. In paragraph 113 of the General Part of the report, the Committee of Experts included Swaziland for Convention No. 87 in the list of cases of progress and this Committee should take note of that fact.

The second issue related to the denial of the right to organize prison staff. They indicated their agreement with the Committee of Experts that such prison staff could not legitimately be considered as part of the armed forces and thus were excluded by the law. The Committee of Experts had also concluded that there could be restrictions on their right to strike. The Employer members noted this and indicated that this Committee did not have to deal with this question in its conclusions.

The third issue concerned the lengthy procedure required before there could be a legal strike. The Experts provided no procedural information on the process other than regarding its length.

The Employers' well-known view meant that these details relating to the right to strike could not be taken up in the conclusions to this case. Clearly, there was no one size fits all answer to this question. Since the last time the Committee discussed this case there had been some steps forward and the Committee could only be encouraged by these positive steps and urge the Government to keep them up.

The Worker members pointed out that Swaziland had ratified Convention No. 87 24 years ago. Given the serious violations noted regarding the exercise of the freedom of association, this case had been discussed by the Committee since 1996. It presented more specifically a problem regarding the unionization of prison workers. Despite the adoption of Act No. 8 of 2000, modifying many sections of the Act on labour relations, the limitations on the freedom of association and on the right to strike persisted. As such, prison workers did not enjoy the right to organize, which undermined the right to strike of this professional body. The adjusting of the Act regulating trade unions and prison workers was thus necessary, all the more so since this corporation contained particularities which required its personnel to be unionized.

The compulsory procedure prior to a strike had been qualified by the Committee of Experts as a particularly heavy procedure. This procedure was clearly in contradiction with Article 3 of the Convention and aimed to discourage all strikes. The probable objective was to silence trade unions, and in the long run, to make them disappear. A reduction in the length of the compulsory procedure prior to a strike thus was indispensable to ensure a better exercise of the fundamental public liberties that were the freedom of association and the right to strike. The Government thus had to proceed with amendments to legislation regarding the right to organize of prison workers and concerning the settlement of disputes so as to ensure the observance of the Convention and guarantee the freedom of expression of prison workers in particular and of trade unions in general.

The Worker member of Swaziland stated that the correctional service employees were still denied the right to form and join organizations of their choice for collective bargaining purposes. The strike procedure was still too long so that it effectively impeded this right, as it had been when the Committee had advised the Government to shorten the period in question. The civil liability clause still existed and remained a threat and an impediment to workers from addressing their socio-economic issues by way of protest action. In short, in the last year, the attempts made by both employers and workers to amend the law, within the Labour Advisory Board, were always undermined by the Government.

He recalled that Swaziland was appearing before the Committee for the seventh consecutive year for continuous violations of freedom of association, evidencing the obstinacy of the Government. As in the past, the Government had made a host of promises to the Committee that it had not kept. Tripartite advice to amend laws was ignored. On the contrary, the Government had arbitrarily come up with the 1996 Industrial Relations Act that had criminalized industrial relations. Having obtained the assistance of the technical team of the ILO, it failed to amend the Act to render it in conformity with the Conventions. The Government turned a deaf ear to advice that was given to it for several years not to use the emergency orders and decrees against workers and particularly the Public Order of 1963 and section 12 of the 1973 decree. No reports had been made by the Commission of Inquiry established to look into the death of a 16-year-old schoolgirl shot by the police during a peaceful demonstration of the SFTU and into the abduction of the Secretary-General of the SFTU. Despite the adoption of the Industrial Relations Act 2000 under the pressure of this Committee's special paragraphs and the possibility of loss of trade benefits under the United States system of preferences, several developments took place in the country. Mass meetings of workers were banned. Workers were detained and charged for leading peaceful demonstrations and brutalized for participating in them. They were denied the right to address press conferences and the right to present petitions. He stated that there could not be any workers' right without broader human rights and civil liberties and that neither could exist nor be sustainable without freedom of association.

The speaker considered that even though the Industrial Relations Act 2000 was largely in conformity with the Convention, it was null and void in the eyes of the authorities because it contradicted the provisions of the 1973 State of Emergency Decree that was the supreme law of the country. This view was confirmed by subsequent developments. The Government passed Decree No. 2 of 2001 that usurped all fundamental rights and was later repealed due to national and international outcry. The Government later introduced a bill to prevent head teachers in schools from joining the teachers' union. There was also a media council bill designed to muzzle the media and freedom of expression that was still under consideration. Before May this year the executive officer of his union was called and warned not to criticize the Government. Since then, the Government had published a new Internal Security Bill that proposed many draconian constraints and restrictions such as the prohibition of announcements of strikes, and characterizing strikes as economic sabotage. The improvements of the labour laws were simply reversed by other statutes. In effect this was like a situation of permanent state of emergency. Despite Swaziland's ratification of six of the eight ILO core Conventions, the African Charter and Peoples' Right, the African Union Constitutive Act, despite its membership of the United Nations, OAU and the Commonwealth, it was reverting to de-humanizing and archaic laws.

With a view to finding a lasting solution, he called for the ILO to send a tripartite high-level political mission to the country to meet with the authorities in order to impress upon them the urgency of amending the laws in question and of respecting the laws in practice.

The Worker member of South Africa stated that the context in which this case concerning Convention No. 87 was being discussed was set out in Chapter 2 of the Digest of Decisions of the Committee on Freedom of Association. It was clearly stated in paragraph 33 of this Digest that the rights conferred upon workers and employers must be based upon civil liberties enunciated in the Universal Declaration of Human Rights, and the absence of these liberties removed all meaning from the concept of trade union rights. In paragraph 34, it was indicated that a system of democracy was fundamental for the exercise of trade union rights. Swaziland was far from being a democracy. The 1973 decree, which was still in force, banned political parties and had suspended the Bill of Rights contained in the independence Constitution. As a result, trade unions took up the role of fighting for human and trade union rights. If progress was said to have been made in labour legislation without any progress on civil liberties, this constituted no progress at all. Despite Article 8(2) of the Convention, which states that national law should not impair guarantees provided for in the Convention, the Government in Swaziland had been using security laws to do just that. The Internal Security Bill, which was intended for terrorists, severely crippled trade union activities and denied freedom of association.

He recalled that this case had been discussed in this Committee for several years. The Government had been promising the adoption of legislation that would be in conformity with the requirements of the Convention. The Committee had been pressing for the right to organize of the staff of correctional services, while recognizing the possible limitation of their right to strike. The Government had to give justifiable replies to the comments of the Committee of Experts. The Committee had also requested amendments to the legislation in respect to the grievance procedure before strikes. As a result, he considered that the Committee should remain seized of this case through a special paragraph.

The Worker member of Norway expressed solidarity with the trade unions of Swaziland and concern at their situation. The Nordic trade unions had been closely following the political and trade union situation in Swaziland and the behaviour of the Government for some time. She supported the proposal that a high-level political mission be sent to Swaziland as soon as possible to assist the Government to bring the legislation into compliance with the ILO's fundamental Conventions.

The Worker member of Senegal recalled that it was not the first time that the case of Swaziland had been examined by the Committee. Even so, the report of the Committee of Experts only reflected part of the situation. The system was clearly anti trade union and continued to track down trade union leaders, harassing them with judicial action for exercising their right to strike. This state of emergency under which all constitutional freedoms were suspended had existed since 1973 and was still in force. The only efforts made by the Government to amend the Act adopted in 2000 had been undertaken out of a fear of losing trade privileges, especially those relating to the general system of preferences. In violation of Article 3 of the Convention, the legislation in Swaziland contained a large number of restrictions, and particularly the exclusion of prison staff from a fundamental human right, namely the freedom to establish a trade union. The Committee of Experts had drawn attention to the fact that the Government had adopted measures which had removed the substance of Article 3 of the Convention and which denied trade union organizations their rights. There was no other way to explain why peaceful protest action had been made subject to holding a ballot. The repressive powers provided for in Decree No. 2 had been repealed by Decree No. 3, which had however maintained the denial of bail for some offences. The current system attempted to control the SFTU in a more visible manner than in the past. The lengthy procedures preceding the calling of a strike had this implicit function. The Government was no longer able to hide its intention to dismantle trade union organizations. The case of Swaziland should be set out in a special paragraph of the Committee's report.

The Worker member of Japan recalled that, even though the case had been examined by the Committee on several occasions and the Government had adopted the recommendations made by the Committee, the civil liability clause still existed and remained a threat and impediment for workers to express their opinions without any restrictions. He emphasized that freedom of association was based on the right of expression which should be fully secured by the Government. He emphasized that there could be no trade union rights without the right to freedom of association, peaceful assembly and freedom of expression. Referring to the reports of Amnesty International, he noted that these rights remained restricted in Swaziland. Government action still threatened the independence of the judiciary and undermined court rulings, and there were a number of reports of torture and ill-treatment by the police.

He cited a number of concrete examples and asked the Government to provide detailed information on these cases to the Committee. He indicated that Mr. Mario Masuku, President of the People's United Democratic Movement, had been arrested once again on 4 October 2001. He had previously been arrested in November 2000 on charges of sedition and had been released under restrictive bail conditions, including the requirement to obtain the permission of the Commissioner of Police when he intended to address any public gathering and to obtain the permission of the High Court to travel abroad. He had required treatment in the hospital because of the poor prison conditions. He also cited the deaths of Edison Makhanya and Sisbusiso Jele, which had occurred within hours of their arrest by the police on 20 March 2001. These were only examples of many reports of torture or ill-treatment by the police.

On 19 October 2001, the police had broken up the news conference organized by members and affiliates of the Swaziland Democratic Alliance to protest against the detention of the opposition leader, Mario Masuku. Several journalists had also been harassed by the police because of their work and a number of publications had been banned. The Government had also threatened to reintroduce a Media Council Bill to tighten restrictions on journalists and publications.

He called upon the Government to give effect in law and practice to the promises that it had made in this Committee. The duty of the Government was not to avoid being criticized, but to take direct steps to build a democratic country in cooperation with the trade unions. He also hoped that the Government would stop antagonizing the trade union movement and would accept the ILO tripartite delegation, which would assist the social partners to engage in dialogue with a view to finding solutions to the human rights problems in Swaziland.

The Worker member of Côte d'Ivoire stated that the case of Swaziland was of prime importance because it dealt with freedom of association, which was the cornerstone of trade union rights, and the concomitant right to strike. Freedom of association and the exercise of the right to strike were inextricably linked, and were among the fundamental public freedoms that each State had to guarantee. The situation in Swaziland was symptomatic of that prevailing in a number of countries, especially in Africa. It was part of a logic intended to silence trade unions and their claims. But Article 2 of the Convention was clear, and unequivocal. This Article provided that all occupational sectors, without exception, had the right to organize. The militarization of some occupational categories had the sole aim of preventing them from establishing trade unions and making their claims. The legislation in Swaziland should therefore be amended to allow prison staff to organize.

With respect to Article 3 of the Convention, the compulsory dispute settlement procedure provided for in sections 85 and 86, in relation to sections 70 to 82 of the Industrial Relations Act was outdated and dangerous for trade unions. It was in direct violation of the provisions of Article 3 of the Convention and threatened trade union action by making it difficult, or even impossible to call a strike These procedures were a violation of freedom and the Convention, and were an obstacle to trade union action. They should be withdrawn. Several States had such procedures, which denied the right of workers to strike, even though this was the only weapon they could use. Furthermore, heavy sanctions were imposed in the event of non-observance of these procedures, which further aggravated the situation. The Committee had been discussing the case of Swaziland for seven years and should support the position of the Worker members and of the Worker member of Swaziland.

The Worker member of the United States expressed the solidarity of AFL-CIO with the workers of Swaziland and its deep concern about the deteriorating political situation in the country, particularly with regard to civil liberties, which undermined freedom of association. He indicated that AFL-CIO intended to renew its efforts to bring a GSP complaint against the Government of Swaziland because of the deteriorating political situation.

The Employer member of Swaziland indicated that it was clear from the discussion with respect to this case that Swaziland was in dire need of the continuation of social dialogue. The labour reforms that had occurred in Swaziland with the assistance of the ILO technical advisory team bore testimony to the power of this process. He emphasized that the employers had driven such dialogue and some of the gains that had been achieved were a result of their relentless efforts to promote dialogue between the social partners. He therefore called upon the ILO to continue assisting his country to accelerate the process of social dialogue, particularly at the national level. He also appealed to the other social partners to renew their commitment to the process. Finally, he expressed the conviction that, with the assistance of the ILO in promoting dialogue, his country would be able to report significant progress in the current year in addressing its problems.

The Government representative expressed his gratitude to all speakers for their statements in relation to the case. In view of the political content of some of these statements, he believed that it was important to provide some background on the political context in his country. He indicated that the Government had established a committee to draft the national Constitution in conformity with international standards. Referring to the Internal Security Bill, he emphasized that proposed legislation of this nature was an internal matter that did not call for discussion by the Committee. He added that the legislative process in his country allowed for a 30-day period following the publication of draft legislation in which views on the proposed texts could be made known.

He emphasized that it was misleading to suggest that his country was moving backwards. He added that it was important to follow due process before the ILO's supervisory bodies. The next step in the process would be for the Committee of Experts to analyse the information provided by the Government and to request any further information that was required. It would then be possible to consider the progress made. He reaffirmed the commitment of his Government to taking advice from the supervisory bodies and entering into discussions with the social partners at the national level with a view to taking the necessary action. He further emphasized that statements to the effect that workers were denied their essential freedoms in Swaziland were untrue. He affirmed that no one was in prison in Swaziland on account of trade union activities. Moreover, there had been many applications under the new legislation to establish new organizations. He reaffirmed the commitment of his country to conform with its international obligations. However, he believed that it would be premature in the process of dialogue with the supervisory bodies to send a high-level mission to his country at the present time.

The Worker members expressed their gratitude to the Government representative for his statement and the information provided. Swaziland had ratified the Convention 24 years ago and the case had been examined by the Committee on several occasions. Since 1996, the issue of the difficulties of application of the principle of freedom of association in Swaziland had been examined at every session of the Committee. Serious violations had been noted, which still persisted. The Worker members took note of the observation of the Committee of Experts and the adoption of Act No. 8 amending sections 29, 40 and 52 of the Industrial Relations Act of 2000. Restrictions on fundamental public freedoms existed in Swaziland with respect to freedom of association and the right to strike. In fact, the prison staff did not have the right to organize. The absolute nature of this restriction violated Article 2 of the Convention and severely restricted the right to strike of this occupational category. Amendments to the law governing the right to organize of this occupational category were required. The right to organize and the parallel right to strike needed to be freely exercised by prison staff.

With respect to protest action, it had to be noted that the mandatory procedure for the settlement of disputes prescribed in sections 85 and 86, read in conjunction with sections 70-82 of the Industrial Relations Act, was lengthy. The Committee of Experts referred to this procedure as "particularly lengthy". Such a procedure was in violation of Article 3 of the Convention and was intended to discourage all protest action. The direct consequence was the silencing of the trade unions, their inability to act and their disappearance in the long term, which was probably the desired result. Such regulations were not only unacceptable to the Worker members on the basis of their convictions and their trade union commitment, but also in the light of internationally recognized fundamental human freedoms. This procedure was clearly in violation of the Convention. A reduction in the length of the compulsory procedure prior to protest action was required to improve the observance of the fundamental public freedom of association and the right to strike.

The legislation governing the right to organize of prison staff and the dispute settlement procedure had to be changed so as to comply with the Convention and respect the freedom of expression of prison staff and trade unions in general. In the event that the Government did not accept a high-level mission, the Committee's conclusions should be set out in a special paragraph of its report.

The Employer members appreciated the expression of good will and intention by the Government representative. They called upon the Government to take action to bring national law and practice into conformity with the Convention. However, if progress were not made, they warned that the Committee might have to look at the case differently next year. They also recalled that the Committee's discussion of the case needed to be based closely on the comments made by the Committee of Experts. If the Committee of Experts were to identify further issues in relation to this case, it could request additional information. They reminded the Government that it needed to take action to ensure that it achieved compliance with the Convention in both law and practice. A Convention could not just be applied through the adoption of appropriate laws, but measures also needed to be taken to ensure its application in practice. They urged the Government to take seriously any issues identified by the Committee of Experts in its analysis of the information provided and to follow the advice given. Although they would normally have considered a technical advisory mission to be premature at this stage, in view of the background to the present case they called upon the Government to give strong consideration to the proposal to send a technical assistance mission to the country. However, they believed that it would be premature on this occasion for the Committee to place its conclusions on this case in a special paragraph of its report, as suggested by the Worker members.

The Committee noted the statement made by the Government representative and the discussion which took place thereafter. It noted with interest the adoption of Act No. 8 of 2000, modifying sections 29, 40 and 52 of the Industrial Relations Act, 2000, which appeared to bring the legislation into greater conformity with the provisions of the Convention while, according to the Committee of Experts, certain problems with the application of the Convention remained. It also noted that a certain number of concerns had been raised during the discussion concerning the practical application of this legislation and requested the Government to provide the information requested by the Committee of Experts in this respect. The Committee further noted with concern the statements to the effect that a Bill on internal security had been drafted which would place serious restrictions on the right of workers' and employers' organizations to exercise their activities. It requested the Government to transmit a copy of this Bill to the Committee of Experts, and any other relevant information concerning developments in this respect, so that the Committee could examine the Bill's conformity with the provisions of the Convention at its next meeting. Recalling that respect for civil liberties was essential to the exercise of trade union rights, the Committee expressed the firm hope that it would be able to note a significant improvement in the application of this Convention in the near future, both in law and in practice. To this end, the Committee once again suggested that the Government consider the possibility of a high-level mission aimed at collecting information on the practical application of the Convention and contributing to a better implementation of the Convention.

Individual Case (CAS) - Discussion: 2001, Publication: 89th ILC session (2001)

A Government representative stated that during the visit of the ILO technical advisory mission to the country in November 2000, preliminary draft amendments to the Industrial Relations Act were prepared with the authorities. These amendments had received Royal Assent and had now entered into force. Moreover, the Committee of Experts had noted with satisfaction that a number of discrepancies between the legislation and the provisions of the Convention, which had been raised previously, had been satisfactorily addressed by the new Act. These issues were enumerated in the report of the Committee of Experts. His Government had tried to ensure that the recently adopted amendments reflected as closely as possible the advice of the ILO technical advisory mission. The Government representative then referred to the two remaining discrepancies between the Act and the Convention. With regard to the issue of the exclusion of the correctional services from the scope of the Act, the Government representative stressed that this had been deliberate since these services formed part and parcel of the armed forces in his country. This was also the situation in many other countries. With regard to the lengthy procedure to be followed before strike action could be taken legally, the speaker indicated that the period of time of 70 days mentioned in the report of the Committee of Experts was wrong. This period had been decreased from 70 days to 14 days. Concerning the issue of civil liability of federations, unions and individuals under the Act, he indicated that they were subject to civil liability only if they engaged in criminal activities during a protest action, as mentioned by the Committee of Experts. The Government representative wished that the Committee of Experts would examine at length the amendments adopted late last year. He also thanked the ILO for its assistance in ensuring that national legislation conformed to Convention No. 87.

The Worker members stated that this Committee was dealing with a Government which ruled by decree; believed in brute force and impunity as opposed to social dialogue; disregarded the rule of law; ruled under a state of emergency laws since 12 April 1973; was alien to voices of dissent; rewarded armed forces for brutalizing peaceable protesting citizens; had no respect for, but malicious interference with the judiciary. This was the sixth consecutive year since Swaziland had appeared on the agenda of this Committee in 1996. During the last six years, when recommendations were made, Swaziland agreed to make improvements but the reality was that each subsequent year there would be a fresh excuse at the expense of deteriorating human and trade union rights. In the last six years, there had been two major cases presented to the Committee on Freedom of Association against the Government of Swaziland (Cases Nos. 1884 and 2019) and other very important violations against trade unions occurred. The speaker then went on to explain in detail the broad content and aspirations of Convention No. 87. Freedom of association was about the right of organizations to function and organize their administration without interference; the right to protest and picket; the right to free expression, free speech and freedom of assembly; protection against acts of anti-union discrimination; protection against acts of interference; the right to freedom of movement; rights of due process; protection against arbitrary arrest and detention; and the right to demonstrate. However, even after the promulgation of the new Industrial Relations Act, 2000 a series of violations of human and trade union rights had occurred and included the closure of the Observer newspaper and the dismissal of union members at the government-owned television station. Between October and December 2000, union meetings had been banned by the Prime Minister. Trade union leaders were under 24-hour surveillance, were denied freedom of movement and were in detention during mass actions. Union leaders and activists were brutalized and trade union meetings were brutally dispersed, while prayer services summoned by workers' organizations and progressive elements were brutally dispersed and tear-gassed. The independent print media, the Nation and the Guardian had been banned. Charges had been brought against trade union leaders for having led and participated in a protest action. Trade union leaders' passports had been withdrawn. Disciplinary measures had been brought against trade union leaders who were civil servants for having participated in the peaceful demonstration of 13 and 14 November 2000. It was evident that while the enactment of the Industrial Relations Act seemed like a positive step, the Government was still using the state of emergency laws against the workers (section 12 of the 1973 Decree and the 1963 Public Order Act).

It was clear that, without the AFL-CIO, the American Government, and the threat of the suspension of privileges under the Generalized System of Preferences (GSP), no genuine changes would have ever been made. It was clear to the workers of Swaziland that without international solidarity and pressure, there would have been no political will within the Government to adhere to social justice as aspired by the ILO and the Declaration of Philadelphia. The ILO technical advisory mission had been given the impression that draft amendments in line with the Convention would be adopted. As soon as the United States Government removed the GSP threat, the Government reinforced the section on civil liability completely impeding the right to protest on socio-economic issues. The Government had no consideration for the rule of law, the Conventions it had ratified, the national legislation and fundamental human rights. This kind of government would never make positive steps unless it were under pressure. Before the Committee adopted a recommendation on this matter, it should first consider the following questions: First, were the dictates of the Convention applied in law and in practice in Swaziland? Second, could human and trade union rights exist under a state of emergency? Third, could a good and conforming labour law or any good law for that matter in any country supersede the Constitution? The answer was obviously no, but this was the case of the notorious and draconian Decree of 12 April 1973 which had usurped the Constitution and revoked the Bill of Rights and all civil liberties. As a result of this unfortunate situation, despite the merits of the new Industrial Relations Act, it could not be implemented since it contradicted the 28-year-old state of emergency decree. Although the Committee had always advised the Government not to apply section 12 of this Decree and the 1963 Public Order Act against workers' organizations, the Government had always failed to comply. The fundamental problem was the state of emergency decree which was the supreme law of Swaziland, so that it prevented any labour law compliant with the Convention from entering into force. On this basis, the Worker members proposed that a high-level ILO mission be sent to Swaziland to investigate, meet the social partners and assist them to establish a forum for social dialogue to address in particular the political concerns that unavoidably prevented workers from exercising their rights and civil liberties and enjoying freedom of association. Alongside the high level ILO mission, the Government should be assisted to make the necessary amendments to the Swazi administration order as advised by the Committee of Experts since 1989. The tripartite social partners should amend and refine all remaining discrepancies under the auspices of the Labour Advisory Board.

The Employer members indicated that this Committee had dealt with this case since the middle of the 1980s. Since 1996 this case had been dealt with on a yearly basis. The previous year a new Industrial Relations Act had been adopted which appeared to address the shortcomings of former legislation. In fact, the Employer members pointed out that this Act had been brought to the attention of this Committee the previous year. However, it had not commented thereon but had preferred to await the comments of the Committee of Experts in this regard since it had been their experience that new legislation often had shortcomings vis-à-vis the Convention. A technical advisory mission from the ILO had visited the country in November 2000 during which preliminary draft amendments to the Act were prepared. Royal assent had been given to the new Act and according to the Committee of Experts the issues raised by it had been satisfactorily amended. These issues concerned nine points which were listed in the report of the Committee of Experts and which had previously been the subject of its comments. These issues concerned considerable amendments to previous legislation. In this respect, Swaziland had been cited as a case of progress in paragraph 210 of the report of the Committee of Experts. This point should not be ignored by this Committee. Apart from this the report of the Committee of Experts addressed two other issues, the first of which regarded the denial of the right to organize of prison staff. Since the Government representative had explained that the prison staff formed an integral part of the armed forces of Swaziland, this exclusion could be considered to be justified. The Committee of Experts should therefore consider whether their exclusion from the scope of the Industrial Relations Act was legitimate. The second issue concerned the very long procedures (70 days) that were required before legal strike action could be taken. The Employer members were now informed by the Government representative that this had been reduced to 14 days. In any event, in the view of the Employer members the issue of the right to strike was simply not dealt with in Convention No. 87. Hence the details concerning the right to strike were not relevant. Regarding the issue of civil liability of federations, unions and their members, the Government representative had indicated that they were open to such liability only in the event of criminal acts committed by them, and not in the event of protest action undertaken by them. The Employer members indicated that the account given by the Government representative and that of the Worker members were completely different. The new information provided by the Government was not reflected in the report of the Committee of Experts. Moreover, the violations of the Convention referred to by the Worker members were not mentioned at all by the Committee of Experts. Hence the Employer members would await the comments of the Committee of Experts in this respect before making any pronouncements. In any event, in the view of the Employer members, a number of satisfactory legislative amendments had been carried out by the Government in line with the requirements of the Convention with ILO technical assistance and expertise.

The Worker members recalled that this was the sixth time this Committee was called to discuss the application of Convention No. 87 in law and in practice in Swaziland. Even though, at each consecutive session, the Government had committed its goodwill towards change, the practice, particularly with regard to human and trade union rights, was still not in conformity with the letter and spirit of Convention No. 87. The Worker members first of all wished to underline the two remaining areas of discrepancies in the Industrial Relations Act, 2000. The Act still excluded prison staff from its scope which was completely unacceptable under Article 2 of the Convention. The Worker members were also very concerned with the unacceptable limitation on the right to strike contained in the new legislation. Even if the new Act had amended the dispute settlement procedure which foresaw a 70-day delay before lawful strike action could be taken, they strongly denounced the fact that under the amended section 40 of the Act, the procedures required a delay of 32 days before peaceful protest action could be taken. Furthermore, two other elements needed to be recalled. First, the requirements for a strike ballot were so complex that they made strike action very difficult or even impossible. In this regard, the Worker members strongly disagreed with the Employer members that the Committee of Experts and the Committee on Freedom of Association were not competent to interpret a right to strike in Convention No. 87. Secondly, unions, federations and individuals were subjected to civil liability if involved in protest action, de facto infringing their rights and leading to prohibitive costs if they exercised their trade union rights. The Worker members had been pleased to learn at the end of last year that, following a technical advisory mission to the country, a number of discrepancies between the Swazi legislation and Convention No. 87 had been addressed during the Industrial Relations Act, 2000. Unfortunately, their hope that the new legislation would be conducive to a real change and a true recognition of the fundamental role of a free and independent trade union movement in Swaziland did not last long. A concrete example of this was reflected in the breaking up of a peaceful march of workers from all over the country on 7 November 2000 by road blocks and heavy artillery. Several union leaders were still waiting for a decision by the court on their peaceful protest action. They had been prosecuted by virtue of section 12 of the 1973 Decree and the 1963 Public Order Act which the Committee of Experts had previously commented on. To make things worse this incident had occurred after the promulgation of the new Act. This was why law and practice could not be separated. The role of this Committee was to examine the compliance with a Convention in law and practice. Hence, the Worker members requested that the current legislation be amended in order to remove the restrictions referred to above. Moreover, they requested that a high-level ILO mission, supported by ILO technical staff, visit the country and meet freely with the Government, trade unions and employers in order to engage the parties in meaningful social dialogue. There was no social dialogue taking place at this time and this should be recognized by the Committee as contrary to the spirit of cooperation claimed by the Government.

The Worker member of the United States underlined that the work of the ILO, especially its technical assistance and its standards enforcement machinery, were complemented quite effectively with the threat of economic sanctions by the United States to finally produce a long sought-after result of the ILO and this Committee regarding the case of Swaziland. However, not all of the legal changes needed to bring the law into compliance with Convention No. 87 had occurred. Some very important changes promised by the Government were rescinded at the last moment. He emphasized that according to the law, unions and persons involved in lawful protest actions and not criminal activity as alleged by the Government member, were subject to civil liability. These promises were not only made to the ILO but also to the United States Government and it was on the basis of these promises that the United States Government agreed to suspend its review of special trade privileges under its Generalized System of Preferences (GSP). This last-minute backing away from its commitments to the ILO was an act of bad faith on the part of the Swazi Government that revealed continued refusal by it to comply fully with its obligations under Convention No. 87. This attitude was confirmed by the continuing troubles experienced by the unions in exercising their freedom of association. He urged the Government to change its attitude and respect fully all provisions of Convention No. 87 both in law and practice. He wished to inform the Swazi Government that the American unions would be kept abreast of developments in Swaziland and would work closely with the United States Government to ensure that the commitments made by the Swazi Government were honoured. If this did not occur, the American unions would be ready to renew their request to suspend Swaziland's GSP trade privileges.

The Worker member of Austria stressed that the repression used against trade unionists in Swaziland must be stopped. The Government member had made two incorrect statements with regard to the Industrial Relations Act, 2000. Section 40 clearly stipulated what notice period was required before peaceful protest action could be taken. This was a lot more than the 14 days mentioned by the Government member. The second incorrect point concerned the issue of immunity for civil liability. It was clear that federations, unions and their members were open to civil liability in the event of their involvement in a demonstration. The Government had enacted a new law but was not at all serious about implementing it. The speaker called upon the autocratic regime in Swaziland to ensure that freedom of association and human rights were fully respected. He also urged this Committee to send an ILO mission to that country.

The Worker member of Denmark noted that the Nordic trade unions had been following the political and trade union situation in Swaziland for quite a few years, hardly believing that the country having ratified the Convention already in 1978 could neglect its obligations to such an extent. Some of the discrepancies between the legislation and the provisions of the Convention had now been addressed in the new Industrial Relations Act. However, these improvements did not convince them that trade union rights would no longer be violated. Through the years they had seen extreme examples of violations of human and trade union rights, and recent incidents referred to them by the trade unions convinced them that this case should be followed very closely. They were not sure that tripartite consultations would be practised, nor that the new labour legislation would be implemented. It should not be forgotten that Swaziland was still under a state of emergency which meant that the Government disregarded the rule of law whenever it found it necessary and suitable. It did so quite often and especially the trade unions and the media had become victims of this state of emergency. It was especially important to be aware of the discrepancies between the Industrial Relations Act and the requirements of the Convention. The most important issue concerned the right to strike which was now severely restricted. Complex procedures were required to be followed before strike action could take place. The Committee should also be aware of the hostility of the Government concerning the right of trade unions to hold meetings. The Prime Minister had announced that such meetings would be allowed under the condition that the police be present and no general policy discussions take place. Despite some positive signs, the situation of workers in Swaziland was so dramatic that the ILO should continue its pressure to remove the undemocratic procedures from the new Act and its supervision of the applications of the new legislation. The next step, especially in the light of the grave incidents which had taken place since this Committee had last met, should be to send a high-level ILO mission to Swaziland.

The Employer member of Swaziland believed that the Industrial Relations Act, 2000, largely complied with the requirements of Convention No. 87. Whatever discrepancies remained could reasonably be dealt with by the social partners in Swaziland provided there was a will to do so. What Swaziland needed from a forum such as this was a recommendation to the ILO to consider giving technical assistance to promote social dialogue in that country. The case before this Committee was a clear testimony that social dialogue was very weak in Swaziland. Condemnation of the country would not solve the problems of relationships in Swaziland. What was needed was assistance to enable the social partners to deal with their differences in a creative and a constructive manner.

The Government member of the United States recalled that her Government had followed this case closely for some time including on a bilateral basis in the context of trade preferences legislation and had actively encouraged the Government of Swaziland to avail itself of ILO assistance in amending its Industrial Relations Act in order to ensure compliance with the Convention. She welcomed the comments made by the Committee of Experts which noted that as a result of ILO technical assistance the Industrial Relations Act of June 2000 constituted a considerable improvement in safeguarding the ability under the law to form and join trade union organizations and for these organizations to carry out their activities. She also welcomed the fact that further amendments to the Industrial Relations Act had been prepared again with ILO assistance and approved by the King of Swaziland in late November 2000. These amendments appeared to address most of the remaining discrepancies commented on by the Committee of Experts, but the Committee would decide if that was indeed the case. She would also like to make it clear that her Government would continue to follow developments closely. She strongly urged the Government to continue to do its utmost to ensure with continued ILO assistance that the Industrial Relations Act and especially the way it was applied in practice was in full conformity with the letter and the spirit of the Convention.

The Government representative reiterated what he had previously stated. His Government had done everything possible to comply with the Convention. He requested the Worker member of Swaziland to clarify the situation and share information with his colleagues about the recent amendments he was aware of regarding the recent amendments not mentioned in the Committee of Experts' report such as the issue of civil liability, of federations, trade unions and their members, as well as that of the reduced length of time to be followed before strike action could be lawfully taken. He finally emphasized that a tripartite body already existed in Swaziland and all social partners could be involved in its work. Recently, the Prime Minister had initiated a Smart Partnership meeting for all social partners. However, if the Workers chose to ignore social dialogue in order to attempt to overthrow the Government, then the Government would only conceive this as political considerations and not genuine trade union activities.

The Worker members, responding to the statements of the Government representative, stated that it was clear that the Government's anti-trade union practices were continuing and were motivated, in part, by the recognition that the SFTU was the main democratic organization in the country. They had listened to the Government's promises, had seen the relevant legislation and heard the explanations of the Government representative to the Conference Committee. Nevertheless, the law and practice in Swaziland remained in violation of Convention No. 87. The Government had to demonstrate a genuine political will to address the grave situation in the country with regard to trade union rights. The Worker members clarified that it was for the purpose of ensuring respect for the fundamental rights of those nine civil service trade union leaders who had been summoned for disciplinary action for attending and participating in peaceful demonstrations that they requested the Committee to take action today. Moreover, it was for the sake of the six trade union leaders that were prisoners-in-waiting for participating and leading peaceful demonstrations that the Committee should ask the Government to take two necessary measures, to mark its first step in a positive direction. First, the Government should amend its current legislation to eliminate existing limitations on freedom of association. Second, a high-level mission, supported by ILO technical staff, should be permitted to visit the country and meet freely with the Government, trade unions and employers in order to promote meaningful social dialogue, and full observance of Convention No. 87.

The Employer members concurred with the initial statement made by the Worker members which did not distinguish between violations in the law and practice in Swaziland since what ultimately mattered was the practical impact. The Employer members had been saying this for 19 years. However, new facts could not be introduced to examine this case. The Conference Committee had never done this since it had always relied on the comments of the Committee of Experts. However, in this case the facts did not appear to equate with what the Committee of Experts had noted. The Employer members noted with astonishment that the Worker member of the United States had threatened that the United States would use trade measures to bring pressure to bear on Swaziland unless the Government took positive action. This was a new tactic, which the Employer members noted. A number of statements in the Committee had made reference to respecting principles of democracy. While the Employer members assumed that all members of the Committee would be in favour of establishing such principles in Swaziland, including the rule of law, free elections, the independence of the judiciary and perhaps even freedom of association, they noted that it was not the role of the ILO to promote democracy. The ILO was limited to examining elements covered by its Conventions and in this regard its terms of reference were clear. They considered that the Committee of Experts would have to look at the issue of the freedom of association rights of prison staff, to determine whether they could fairly be considered members of the armed forces, as this could affect their freedom of association rights. If, however, the issue involved the right to strike, then they considered that it could not be dealt with by the Conference Committee, as this point was not covered under Convention No. 87. The Employer members therefore requested that the issue of the right to strike not be included in the Committee's conclusions for reasons which they had often stated, namely that this issue was not within the competence of the ILO. However, the Employer members trusted that the Worker members would find a way to include this matter in a review system. Then, this matter could be addressed by the Committee of Experts and the Conference Committee, but not before.

The Committee noted the oral statement made by the Government representative and the discussions which took place thereafter. It noted with interest the adoption of the Industrial Relations Act, 2000, which had brought the national legislation into fuller conformity with the provisions of the Convention on some points previously raised by the Committee of Experts. It further noted the statement made by the Government representative concerning the amendments made to the Act in December 2000 following an ILO technical assistance mission to the country, which took place in November 2000. It recalled that it was for the Committee of Experts to examine the compatibility of these further amendments with the provisions of the Convention. The Committee also noted that the Committee of Experts had pointed out that discrepancies remained between the legislation and the Convention. The Committee therefore hoped that the Government would pursue its commitment to full social dialogue so as to redress any remaining obstacles to the application of the Convention in law as well as in practice. The Committee suggested in this regard that the Government consider the possibility of an ILO high-level mission to collect information on the practical application of the Convention and to assist in the development of meaningful social dialogue in the country. It expressed the firm hope that the Government would be in a position to indicate concrete progress made on the issues raised in its next report for examination by the Committee of Experts.

Individual Case (CAS) - Discussion: 2000, Publication: 88th ILC session (2000)

A Government representative indicated that Swaziland was a staunch Member of the ILO. This was evidenced, amongst other things, by the regular payment of its annual contributions and its requests for ILO technical assistance when required. The ILO's response in matters of technical assistance had always been positive and the relationship between the Organization and the member State had gone from strength to strength. It was on this basis that Swaziland had always subscribed and would continue to subscribe to the principles of the ILO, namely democracy and social justice within the framework of tripartism.

Swaziland was fully aware that international labour standards were a vehicle for the attainment of social justice and democracy, which were fundamental in the workplace. Last year, he had addressed this Committee on efforts that had been made and were being made to pass the Industrial Relations Bill, 1998, into law. He was pleased to report that the Bill had since been signed into law. A copy of the Act had just been communicated to the Office. As the Committee might recall, the initial Bill had been elaborated by a tripartite committee. After winning government approval, the draft had been submitted to Parliament. In its wisdom, Parliament had introduced certain amendments, which had been incorporated into the present Act. The Government requested the Office to pass on a copy of the Act to the Committee of Experts for its examination. The Government would welcome comments by the Committee of Experts with a view to taking necessary action to bring the law into conformity with international labour standards. The Conference Committee might recall that the question of an ILO contact mission to Swaziland had been raised last year. The Committee had decided, after the Government representative had elaborated on the Bill's progress, to leave in abeyance the debate on a contact mission until this year, if necessary. In view of the significant progress that had been made to give effect to the Act, debate on the matter would in his view no longer be necessary.

Prominent in last year's discussions in the Conference Committee had been concerns raised by the Committee of Experts relating to certain provisions of the Industrial Relations Act, 1996. The Committee of Experts had commented on the 1973 Decree concerning restrictions on meetings and demonstrations in respect of the right of organizations to hold meetings and peaceful demonstrations. It had also referred to alleged usage of the 1963 Public Order Act to hinder legitimate trade union activities. In reference to the Government representative's submissions of last year on the concerns raised by the Committee of Experts and shared by the Conference Committee, he pointed out that the new Industrial Relations Act addressed those concerns, together with others raised by the Committee of Experts in last year's discussions. The Committee had also referred to the possibility of the Government's organizing independent inquiries into the alleged abduction of the Secretary-General of the Swaziland Federation of Trade Unions and the death of a child during a demonstration. In view of the frequency of similar incidents, the Government submitted that adequate investigations had been carried out into the two cases and into many others. The Government reaffirmed its commitment to fully respect civil liabilities as a fundamental aspect of compliance with Convention No. 87. In conclusion, he gave his assurance that the Government would consider all the comments, observations and recommendations that this Committee might make.

The Employer members, recalling that the case had been discussed frequently by the Committee in recent years, noted that because little progress had been achieved the Committee of Experts had raised the same points as in its previous comments concerning the discrepancies between the national legislation, particularly the 1996 Industrial Relations Act, and the provisions of the Convention. The Committee had been placed in a difficult position with regard to the requests made to the Government in its conclusions over the years, since the Government representative had announced on various occasions that the problems would be resolved in the very near future and that a national committee had been established for this purpose. On this occasion, the Government representative had announced that the Industrial Relations Bill, which had been drafted in 1998, had been signed recently and had come into effect. Nevertheless, the Employer members wished to recall a number of points on which the Committee of Experts had commented. These concerned restrictions regarding the right to organize, limitations relating to the activities of trade unions and the power of the Labour Commissioner to refuse to register a trade union if he or she was satisfied that an already registered organization was sufficiently representative. This latter provision raised the issue of trade union pluralism. Commenting on the requirement that a majority of the workers concerned had to approve a strike before action could be taken, the Employer members emphasized that this constituted an old democratic principle which could not be criticized in itself. Moreover, they noted that the right to strike and provisions related thereto were not covered by Convention No. 87 and that they did not therefore accept the criticism made by the Committee of Experts in this respect.

The Employer members took note of the statement by the Government representative that the Industrial Relations Bill, drafted by a national tripartite committee with the technical assistance of the ILO, had come into force, but that some amendments had been made on the basis of discussions in Parliament. This in itself gave rise to no criticism, as it was the role of parliamentary discussion to amend legislation, where appropriate. The legislation would have to be examined by the Committee of Experts in order to determine whether it had indeed eliminated the discrepancies with the Convention which had existed previously. Referring to the indication by the Government representative that the new legislation had amended the 1973 Decree, which had also been criticized by the Committee of Experts, they called for this issue to be examined by the Committee of Experts when it analysed the new legislation. Finally, the Employer members recalled the difference between industrial action and mass demonstrations organized by workers. Although the latter did not constitute industrial action, according to the traditional definition of the term, the question had been confused on several occasions during the discussion. When examining the new legislation, it was important to ensure that this distinction was made.

The Employer members indicated that the Committee faced a dilemma with regard to its conclusions, since it only knew about the legislation which had been repealed and replaced a few days earlier. This special situation should be reflected in the Committee's conclusions. They called for the new legislation to be transmitted to the ILO so that it could be examined by the Committee of Experts. This would provide a basis for the Conference Committee to review the matter next year, if necessary.

The Worker members thanked the Government representative for the brief information provided to the Committee. They emphasized that it was their strong view that this had been and remained a very serious case of non-compliance with the Convention. They recalled that a direct contacts mission had visited the country in 1996 following the invitation made by the Government during the discussion of the case in the Conference Committee. The mission confirmed the widespread harassment of the country's trade unions. This led the Government to draft a new Industrial Relations Bill with the assistance of the ILO which was consistent with Convention No. 87. However, the Bill had not been enacted as expected. In 1997, the Conference Committee had therefore expressed deep concern over the failure to enact the law and the continuing harassment of trade unions in the country. The Committee had set its conclusions aside in a special paragraph of its report to emphasize its deep concern at the case. A new amended version of the Industrial Relations Bill had been adopted just a few days earlier. But, the lack of progress had compelled the Committee of Experts to express its "deep regret" and to list once again the discrepancies between the 1996 Industrial Relations Act and the provisions of the Convention. The Committee of Experts had identified 13 major discrepancies, including such fundamental issues as the exclusion of certain categories of workers from the right to organize; the imposition by the Government of a prescribed trade union structure and the power of the Labour Commissioner to refuse to register a union; severe limitations on the activities of federations, including an absolute prohibition on a federation or any of its officers from causing or inciting any workplace action; severe restrictions on the right to hold meetings and peaceful demonstrations, and on the right to strike; excessive court powers to limit union activities and to cancel union registration; and an obligation to consult the Government prior to international affiliation. These digressions demonstrated the disdain shown by the Government for many years towards its commitments under Convention No. 87. Not surprisingly, this disdain had resulted in the sometimes brutal and violent harassment of workers and their unions. Vivid accounts of such harassment had been provided to the Committee by Jan Sithole, the Secretary-General of the Swaziland Federation of Trade Unions (SFTU). These had ranged from repeated arrests and detention, to violent threats to his family, being stripped of his clothes and stuffed in a car boot. Until the previous day, Jan Sithole had been unable to be a member of the Committee because his Government had refused to accept him as the Worker delegate of Swaziland, despite the fact that the Executive Board of the SFTU, the largest and most representative trade union organization in the country, had elected him to represent the workers of Swaziland once again at the Conference. This situation had been remedied after it had been brought to the attention of the Credentials Committee. However, it constituted extremely strange behaviour for a Government which was trying to convince the Committee of its sincerity and its commitment to fulfil its responsibilities under the Convention.

According to the ICFTU Annual Survey of Violations of Trade Union Rights for the year 2000, harassment of unions continued in the country. For example, in October 1999, the entire National Executive Committee of the Swaziland National Association of Teachers (SNAT) had been arrested five days after it had organized a peaceful demonstration. Two months later, the government-controlled broadcasting and information services had banned the SFTU from broadcasting any announcements or other information unless it had been approved by the police in writing. Moreover, Jan Sithole remained under 24-hour surveillance.

The Worker members noted the statement by the Government representative that new legislation had been enacted by Parliament at the end of 1999, but that the King had refused to give it assent until certain revisions were made. They recalled that this draft legislation had been drawn up with the assistance of the ILO to ensure that it was in compliance with the Convention. However, more information was needed concerning the final revisions of the text. There were reports that a liaison officer would be appointed by the King in every factory to ensure compliance with traditional values. This went hand in hand with a further amendment which set out the requirement to establish works councils in every factory with 25 or more employees, regardless of whether a trade union existed, to be chaired by the liaison officer. The Worker members called for further enlightenment from the Government representative as to the manner in which the works councils would be selected, expressing the concern that they would be selected by their employers. They nevertheless feared that this provision could be seen as a backward step compared with the previous law, which had provided for the establishment of works councils only in cases where there was no union. The amendment therefore created a dual structure at each workplace with equal bargaining rights for each structure, one chosen by the workers themselves and the other chosen by other means.

Another amendment required the holding of a ballot before unions participated in peaceful protests and demonstrations on social and economic issues. The Worker members called for the Government representative to explain how this would work in practice. It was unclear whether the union leadership could participate in or support a peaceful demonstration without submitting the question to a full vote of its membership. They feared that the amendment in fact raised an insurmountable legal barrier preventing unions from participating in any form of national protest. Moreover, it appeared that the new legislation entitled anyone claiming loss because of a strike or protest, even in the event of a legal strike, to introduce a claim in a court of law against the union and against any individual accused of causing the loss. The Worker members added that there had been a lot of violence in Swaziland, much of it directed against the trade unions.

It would appear that the amendments to the new legislation meant that it was not in compliance with the Convention and in a number of respects might not be an improvement over the old law. This undermined the expression of goodwill by the Government representative. This situation was extremely disappointing for the Worker members and no doubt for all the members of the Committee. Many important questions remained to be answered and the new legislation, complete with its amendments, needed to be submitted to the Committee of Experts for examination. In conclusion, the Worker members called for the adoption without delay of new industrial relations legislation which was in conformity with the Convention and for an immediate end to the widespread harassment of trade unions in the country. Until such time as this had been achieved, they believed that the Committee should continue to express, in the strongest terms, its deep concern at the lack of progress made.

The Worker member of Swaziland strongly supported what the Workers' spokesperson had already stated on this issue. All that the Government had said today should be viewed within the context of its determination, or lack of determination, to enact laws in compliance with the international labour standards it had voluntarily ratified; and of whether there was an intention on the part of the Government to comply with these standards both in law and in practice. Since 1996, Swaziland had appeared on several occasions before this Committee, and each year the Government had made resounding positive promises which it had never fulfilled. It should also be recalled that from 1996 to 1999 the Government had been a titular member of the Governing Body, the body entrusted with monitoring, advising and encouraging respect for human dignity and social justice. It should also be noted that the failure by the Government to comply with the provisions of the Conventions it had voluntarily ratified was combined with a series of trade union and human rights violations which included, inter alia: harassment of trade union leaders; arrests of trade union leaders; brutal dispersals of peaceful demonstrations; the shooting and killing of a 16-year-old schoolgirl during a workers' demonstration; unlawful searches of trade union offices, and seizures of trade union documents; and unlawful searches of trade union leaders' homes. This had caused the present Committee to request the sending of a direct contacts mission to Swaziland in order to verify and confirm all the above-listed gross violations. The case of Swaziland had been placed in a special paragraph in 1997. Details of the findings of the direct contacts mission had been reported systematically and accurately in Case No. 1884. Subsequently, in June 1997, Swaziland had requested technical assistance from the ILO to draft legislation in conformity with international labour standards. This assistance had been provided to the Government, which had also promised that it would submit appropriate legislation the following year (1998).

The Tripartite Labour Advisory Board had completed the drafting process in February 1998 and had been promised that the draft would be passed into law before June 1998. He recalled that, before this Committee in 1998, the representative of Swaziland had declared that this could be done prior to the dissolution of Parliament, which was due to occur, but, failing that, the Bill would be passed into law before the end of 1998. The Government had however failed to do this. Instead, the Council of Ministers had passed the Swazi Administration Order of 1998, which legalized forced labour, slavery and exploitation with gross impunity, as detailed in the observation of the Committee of Experts regarding Swaziland's application of Convention No. 29 in this year's report. He also indicated that there had been continued acts of violations of the Convention by the Government, including inter alia: political interference in shop-floor industrial relations issues by the Swazi National Council and the central Government; obstruction of the collective agreement and bargaining processes; brutal dispersals of peaceful demonstrations, including the use of tear gas and batons; the brutal dispersal of meetings held on private premises; victimization and intimidation of journalists who sought to carry out accurate reporting; and obstruction of official ILO tripartite missions to avoid SFTU participation. This year again, he had been denied the right to represent the workers, but thanks to a decision by the Credentials Committee he could speak as a delegate.

The Government had engaged in the systematic repression of trade unions. In March this year, the Government had ordered the closure of the newspaper The Observer and 82 employees had lost their jobs. This closure had been a result of revelations which had not pleased the Government. Furthermore, trade union members had recently been dismissed from the government-owned television station in spite of decisions to reinstate all workers by arbitration authorities. In 1999, the Minister had informed this Committee that before the end of the year appropriate legislation would be enacted. This had not occurred, although both Houses of Parliament had concluded their readings in October 1999. At this stage, the Bill had lost some balance in the negotiating process but, with minor discrepancies, it still largely conformed to the Convention. This Bill had then been subjected to an examination by a non-legislative body with the task of advising the authorities on custom, traditional and cultural issues resulting in amendments which in his view grossly violated the basic fundamental rights of workers. These amendments had been unilaterally imposed without any consultation of the Labour Advisory Board. This in itself constituted a breach of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). In addition, the ILO technical committee which had been placed at the Government's disposal had not been consulted on the amendments at issue. This omission, undoubtedly deliberate, demonstrated beyond any shadow of a doubt that there was no political will on the part of the Government to enact a labour law in conformity with international labour standards. Nor should it be forgotten that employers' and civil servants' organizations had already drawn the Government's attention to the negative effects that the amendments at issue would have on the law if they were adopted. The Government had proceeded, however, to enact the law, including provisions that grossly violated Conventions Nos. 29, 87 and 98, as reflected in the report before this Committee. The amendments at issue included the introduction of:

-- A right to claim compensation from the organizers and/or individuals participating in strikes or protest actions, whether legal or illegal, for any loss caused by such strikes or protest actions (section 40, subsection 13, of the new law). This provision was unacceptable and constituted a total denial of the right to strike. In a similar case involving the United Kingdom in 1989, the Committee of Experts had stated: "The right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests as guaranteed by Articles 3, 8 and 10 of the Convention. It also takes the view that restrictions relating to a strike and to the methods used should be sufficiently reasonable as not to result, in practice, in an excessive limitation of the exercise of the right to strike." He recalled that Convention No. 87, Article 8(2), provides that: "The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided in this Convention."

-- A requirement of a majority vote, by secret ballot, of all the members in favour of the carrying out of a protest action on socio-economic issues as a prerequisite for any such actions. This requirement was tantamount to a total denial of this right. If such action was called by a federation or a confederation, such a vote would be the equivalent, at national level, of calling a national referendum, and this condition alone defeated the spirit of the Convention. It thus constituted a systematic denial of the exercise of the rights it sanctioned.

-- Rules allowing for coexistence between works councils and trade unions and the entitlement for the works councils to negotiate terms and conditions of service, wages and the welfare of workers (section 52 of the new law). Furthermore, the same provision stated that the establishment of works councils was compulsory in enterprises employing more than 25 persons. He explained that works councils were not the same as those in Germany. They were employer-driven and could be manipulated by them. Employers were only required to recognize trade unions which represented 50 per cent of the employees. This was a new tactic to accommodate EPZs.

It was surprising that the amendments concerning strike ballots, sympathy strikes and restrictions on peaceful demonstrations had been accepted by the Government although they had already been identified as discrepancies by the Committee of Experts. This demonstrated a deliberate and flagrant disregard for and undermining of the advice given by the ILO technical committee to the Government and a contempt of the highest order for the provisions of the Convention and the ILO Constitution.

He said that as long as Swaziland was ruled by the 1973 Decree, which had removed the Bill of Rights from the independence Constitution, it would continue to have a problem in applying freedom of association in practice. He believed that it was on the basis of this decree that the Government refused to listen to any calls for conformity with the human rights-related Conventions. This arose from the fact that national legislation could not be in conflict with the Constitution. If the Constitution of Swaziland did not sanction the Bill of Rights, all human rights-oriented Conventions would clash with the Swaziland Constitution, since they were still suspended by the above-mentioned Decree. He finally stated that he was convinced that the problem at issue was not a technical but a political problem. Against this background, he declared he had no other choice but to propose that a high-level ILO mission be sent to Swaziland with a view to finding a longer term solution. At the same time, the Government should undertake to address all the defective clauses and amendments within the shortest time possible.

The Employer member of Swaziland welcomed the adoption of the long-awaited legislation in his country which, in his view, vindicated the position which he had taken the previous year that the Swaziland Legislature had the capacity to deliver the law as desired by the parties. In this respect, he considered that the new law covered all the concerns raised by the Committee of Experts. As the Government representative had stated, he hoped that as soon as the Committee of Experts had studied the new law, it would make the necessary comments to assist the tripartite structure in Swaziland to take appropriate action. In particular, he hoped that now that the law had been adopted, the ILO would find it appropriate to provide his country with much needed technical assistance to implement the provisions of the new law and to build the capacity of the new institutions required by the law.

The Employer member of South Africa stated that the divergencies between the 1996 Industrial Relations Act and the Convention had been resolved by the drafting in 1998 of a new Industrial Relations Bill, which had been prepared by a national tripartite committee with the technical assistance of the ILO. The development of the Bill and the agreement to its terms by the social partners constituted significant progress in this case, as noted by the Committee of Experts, which had found that all the previously identified discrepancies in the application of the Convention would be eliminated by the Bill. However, it was a less satisfactory aspect of the case that the significant activities and signs of progress on each occasion appeared to occur only in the week preceding the Conference. While the implementation of the statute constituted progress which should be welcomed, there remained the question of the divergencies between the final form of the legislation and the draft which had been agreed to with the social partners. At the present time, he stated that the Committee was not in a position to reach a substantive assessment of the amendments which had been made to the final version of the legislation or the extent to which they were consistent with the terms of the Convention. He therefore called upon the Government of Swaziland to provide detailed information, as a matter of urgency, on the nature and extent of the amendments and on whether they compromised the progress which had been registered so far. While, in view of the history of the case, a degree of scepticism might be in order, care should be taken not to undermine the progress which had been achieved through any precipitate action which might serve only to raise the levels of social conflict, compromise the prospect of further social dialogue and hinder economic development. The social partners had demonstrated an evident capacity to resolve their differences on issues relating to the obligations deriving from the Convention. It was therefore necessary to exercise a certain degree of patience so that further social dialogue, with assistance from the International Labour Office if necessary, could contribute to the achievement of the desired objectives.

The Worker member of South Africa emphasized that Swaziland was not only a Member of the ILO, but also of the Southern African Development Community (SADC), and had accepted the SADC Social Charter on Fundamental Rights. He expressed a number of concerns with regard to the new legislation enacted earlier in the week. In the first place, the establishment of works councils chaired by a person appointed by the King violated the provisions of Convention No. 87. The appointment of works councils by employers undermined the role of trade unions and the principles of freedom of association and collective bargaining in violation of Convention No. 98 as well as Convention No. 87. Restrictions on freedom of assembly were also maintained in the new legislation. In addition, restrictions had been placed on socio-economic strikes through the imposition of a ballot requirement. The imposition of civil liability for legal strikes was also in violation of the Convention. Moreover, the new legislation served to criminalize the activities of trade unions. He noted in this respect that these amendments had been inserted by the Swaziland National Council after the adoption of the legislation by Parliament. He called for a high-level ILO delegation to visit the country and engage the Government in the development of new industrial relations legislation, in compliance with Conventions Nos. 87 and 98, in consultation with the social partners.

The Worker member of the United Kingdom focused on the legislation to which the King of Swaziland had given his assent at the beginning of the week. At the heart of the problem lay the extraordinary fact that, at the beginning of the twenty-first century, Swaziland retained the last vestiges of feudalism in the world. This feudalism found other expressions in the country, one of which was the National Council, consisting of hand-picked advisers and elders whose sole mandate was to advise the King on traditional and cultural matters. The amendments incorporated into the final version of the industrial relations legislation had emanated from that Council and placed further severe limitations on the normal exercise of legitimate trade union activities, and particularly on the right to strike and to undertake protest activities, such as demonstrations. He emphasized that section 40(13) of the new Act gave anyone the right to claim that they had suffered loss as a result of a strike. The Committee had had the occasion to discuss similar legislation in his own country in the early 1990s. Section 40(3) required a secret ballot prior to involvement in protest action. Moreover, the ballot had to be conducted by the Labour Advisory Board and not the union. This meant that, even if it wished to organize a national demonstration, and not even a strike, the Swaziland Federation of Trade Unions (SFTU) would have to ballot its entire membership, which was the equivalent of requiring it to hold a national referendum every time it wished to organize a demonstration. In a sectoral dispute, a ballot would have to include not just the union members, but all the workers in the bargaining unit, including non-union members.

He added that subsections 40(1)(b), (3) and (8) set out requirements for periods of notice which had the clear aim of preventing any action. In the first place, 21 working days had to be allowed for mediation by the Labour Advisory Board before the ballot could take place. In this respect, he noted that the Committee on Freedom of Association had considered that the imposition of a system of compulsory arbitration through the labour authority, if a dispute was not settled by other means, could result in a considerable restriction on the right of workers' organizations to organize their activities and might even involve an absolute prohibition of strikes, contrary to the principles of freedom of association. A further seven days' notice was then required before the ballot could take place. He noted in this regard that a national ballot could itself take a considerable amount of time to complete. Finally, another five days' notice had to be given before any action could take place. He therefore calculated that, merely in order to call a demonstration, a minimum period of seven weeks would be required.

Recalling discussions in the Committee in the early 1990s concerning legislation in his own country, he emphasized that the above complexities made it almost impossible for trade union officials to know whether they were acting within the law. The Committee on Freedom of Association had stated that the legal procedures for dealing with a strike should not be so complicated as to make it practically impossible to declare a legal strike. In this case, the restrictions, which also affected the right to demonstrate, amounted to a denial of the right to peaceful protest.

With regard to the amendments to section 52, dealing with works councils and their coexistence with trade unions, he explained that employers were required to set up a works council where there was no union branch in the workplace. Under the previous legislation, when a union applied for recognition, the works council ceased to exist. Under the new legislation, a works council would coexist with the trade union and would have the right to bargain wages and conditions for non-union members. The works councils were funded, chaired and their agenda set by the employer. The Swazi Government had been a member of the Governing Body from 1996 to 1999 and could not plead ignorance of the extensive jurisprudence of the Committee on Freedom of Association regarding "Solidarismo". It was extremely regrettable that the Government of Swaziland should introduce legislation on works councils which perpetuated the paternalistic mould of industrial relations that had prevailed during the darkest hours of Apartheid in South Africa. This was particularly deplorable at a time when elsewhere in southern Africa democratic governments, the trade unions and responsible employers were working hard to replace the destructive and enduring legacy of Apartheid with more modern industrial relations systems based on respect for the independence of the social partners. If Swaziland wished to become a part of the movement towards modernization, a high-level ILO mission, as proposed by the Worker member of Swaziland, might be able to provide important assistance.

The Worker member of Zambia urged the Government to be more responsive to the workers' cries for social justice. Although the Government representative had stated that it was his intention to deliver social justice to the workers of his country, he had been unable to maintain the amendments, proposed by the social partners, to the Industrial Relations Bill. The final version of the legislation threatened to take away what little remained for the workers. The concept of works councils, as set out in the new legislation, was outdated and a sure way of undermining the labour movement. He recalled that Swaziland had not been spared the impact of globalization and that it had no choice but to protect its citizens by providing a basis upon which investors could build and in which workers could be protected. However, the Government had not been able to find the appropriate solution. It had been hoped that the new legislation would address the outstanding issues, but the promised relief had been taken away. Instead of marching forward with the times, the Government had taken a step backwards. It was therefore almost certain that the case would need to be examined by the Conference Committee on future occasions.

The Worker member of Norway, also speaking on behalf of the Worker members of Denmark, Finland, Iceland and Sweden, said that it defied belief that a country which had ratified the Convention as long ago as 1978 could neglect its obligations to such an extent. Despite the courageous fight by Jan Sithole, the Secretary-General of the SFTU, little progress had been made in introducing democratic labour laws in the country. The fact that Jan Sithole had been denied access to the Conference by his Government was the best proof of the grave discrepancies between the provisions of the Convention and national law and practice.

She noted that the long-awaited Industrial Relations Bill had now received the assent of the King. However, the Swaziland National Council had introduced new amendments which were not in compliance with the Convention. The Government of Swaziland was therefore once again ignoring the urgent calls to bring its legislation into line with the Convention. The fact that the Swaziland National Council, the King's advisory body, had interfered in the legislative process and insisted on unacceptable amendments was another example of the country's undemocratic and anachronistic political system. Through the adoption of the legislation, which contained some of the same unacceptable provisions found in the 1996 Industrial Relations Act, Swaziland was showing contempt for the ILO and its supervisory system. At the Conference in 1999, the Government representative had stated that the new Industrial Relations Bill had been drafted by a tripartite committee with ILO assistance and that the discrepancies raised by the Committee of Experts had been eliminated and the Bill brought into compliance with the Convention. In addition to this legislative assistance from the ILO, the country also benefited under an ILO technical cooperation project in the region, funded by Norway, to strengthen tripartite structures. Government officials had pledged to respect tripartism and trade union rights at the meetings and seminars convened. Yet the Government's response consisted of arrogant disregard for the assistance provided. The promises made to the Committee of Experts and to earlier Conference Committees had not been kept, and the agreements entered into had not been implemented.

The Government was undoubtedly fully aware that the amendments adopted were not in compliance with the Convention. Important restrictions on the right of organizations to hold meetings and peaceful demonstrations, the prohibition of sympathy strikes and the organization of strike ballots by the Commissioner of Labour were among the measures introduced by the amendments, and were identical to the provisions criticized by the Committee of Experts as not being in conformity with the Convention. It was probably for this latter reason that they had not been brought before the tripartite structure, namely the Labour Advisory Board, before being included in the new law. After years of discussion, technical assistance and the inclusion of the case on two occasions in a special paragraph of this Committee's report, labour legislation was still not in compliance with the Convention. Other appropriate measures therefore needed to be considered and there could be no doubt that the case once again had to be placed in a special paragraph.

The Government member of the Netherlands, also speaking on behalf of the Government member of Germany, noted that the 1996 Industrial Relations Act had led the Committee of Experts to identify 13 elements which were in conflict with the Convention. This Committee had dealt with the matter on several occasions and had issued urgent calls to the Government for the adoption of the 1998 Industrial Relations Bill. In its latest report, the Committee of Experts had used the phrase "deep regret" at the very slow progress which had been made in the adoption of the Bill. During its examination by Parliament, some minor changes had been made to the Bill. The King's Advisory Council had then examined the Bill and had proposed a number of amendments. In itself, the role of this Advisory Council in relation to the Bill was worth noting. He therefore trusted that the Committee of Experts would look into the role played by this Advisory Council in this respect, as well as analysing the contents of the new legislation and its compliance with the Convention. It would be necessary to remain very attentive to the case and continue to examine it. Focus should be maintained on the application in practice of the requirements of Convention No. 87 through the new legislation. The visit by a mission, as proposed by the Worker members, might be able to shed further light on the matter. Finally, he emphasized the need for good governance, which also involved the application of fundamental labour standards including Convention No. 87. The relevance of good governance extended far beyond the field of fundamental labour standards, as the Government of Swaziland would doubtless appreciate.

The Government representative thanked the Worker and Employer members for their comments and expressed his appreciation for the technical assistance which had been rendered by the ILO in the preparation of the 1996 Industrial Relations Act. He reiterated that the Government fully supported the ILO Conventions it had ratified. With regard to the discussion, he recalled that the 1998 Industrial Relations Act had been adopted and that it would be appropriate to take this legislation into consideration in the comments of the Committee of Experts. The conformity of the Act with the Convention would require assessment by competent experts and could not be decided on the basis of allegations. He further recalled that the new Act had been approved by the Parliament and King, which was the legislative process in the country. This Act was adopted like others. He indicated that the Government would be prepared to sit down with the Labour Advisory Board to examine, with the assistance of the ILO, the conformity of the amendments with the requirements of the Conventions. He would take appropriate action if legislation was considered to be in violation of Conventions. The revised legislation should then be submitted to the Committee for Experts for examination.

The Employer members observed that the discussion had mostly focused on the newly adopted Industrial Relations Act, the text of which had not been examined by the Committee of Experts. Since it was pointless to discuss a law without having consulted the text, they suggested to follow well-established tradition and to wait for the results of the examination of the new legislation by the Committee of Experts. They once again emphasized that the particularity of this case was that it was based on comments by the Committee of Experts with regard to laws which had been repealed. Turning to the conclusion, they stated that it should include the statement of the Government representative indicating the Government's willingness to submit the new law again to the national tripartite committee in the near future, so that it could examine, with technical assistance from the ILO, whether the new law had indeed eliminated the discrepancies which existed between the old legislation and the provisions of the Convention. If necessary, amendments to the new law would be made. The results of this consultation should be provided in a report for further examination by the Committee of Experts. The Committee could then review this case again on the basis of the most recent information.

The Worker members recalled that they had proposed a high-level ILO mission to Swaziland in order to examine the problems in the application of the Convention. This proposal was an opportunity for the Government to show its good intentions. The fact that the Government was unable to accept this idea would have an impact on the manner in which Swaziland would be regarded in the international community. With regard to the Government's suggestion that the 1998 Industrial Relation Act, as amended, be reviewed by the national tripartite committee, they recalled that the social partners had been consulted for the 1998 draft of the Act, but their suggestions had been subsequently ignored. Therefore, they viewed the Government's proposal with some suspicion, although they encouraged all forms of tripartite consultation. Noting the apparent unwillingness of the Employer members to support the inclusion of the case in a special paragraph, they requested that the conclusion of the Committee express concern that the Government was unwilling to accept the offer of the proposed mission.

The Committee noted the oral statement made by the Government representative and the discussions which took place thereafter. It recalled with deep concern that this case had been discussed by the Committee every year since 1996 and that the Committee had been urging the Government for two years now to take the necessary steps for the adoption of the 1998 Industrial Relations Bill so as to eliminate the serious discrepancies existing between numerous provisions of the 1996 Industrial Relations Act and the Convention. It also recalled the serious discrepancies between the 1973 Decree on the rights of organization and the 1963 Public Order Act and the Convention. The Committee recalled once again in this respect that the Committee of Experts had called for amendments to the 1996 Act in order to ensure, in particular, the right of workers without distinction to establish organizations of their own choosing, as well as the rights of workers' organizations to organize their administration and activities, and to formulate their programmes without interference from the public authorities. The Committee noted the Government's statement that a new Industrial Relations Act had now come into force. It further noted with regret, however, that certain amendments had been made to this text subsequent to the Committee of Experts' examination of the Bill without consultation with the social partners. It stressed that it was for the Committee of Experts to examine the compatibility of this legislation with the legal requirements of the Convention. The Committee noted that the Government had just supplied a copy of the new Act to the Office in order that the Committee of Experts would be able to examine it, with the report due by the Government this year. It expressed the firm hope to be able to note next year concrete progress in the implementation of the Convention both in law and in practice. The Committee reminded the Government that an on-the-spot mission and technical assistance of the International Labour Office were at its disposal to help in solving the problems in the application of the Convention. The Committee noted that the Minister was ready to submit again the amended law to the national tripartite committee to examine, with the assistance of the ILO, in particular the conformity of these amendments with the requirements of the Convention.

Individual Case (CAS) - Discussion: 1999, Publication: 87th ILC session (1999)

A Government representative indicated that Swaziland supported the principles that the International Labour Organization stood for, including all the mechanisms that it had put in place to pursue its mandate. His Government was also aware of the obligations that went with its membership of the International Labour Organization, which included taking part in the formulation of and compliance with international labour standards.

He recalled that Swaziland appeared under the paragraph of special cases until June 1998 when, because of progress made in the reformulation of a consensus Industrial Relations Bill, that effort was recognized during the last meeting of this Committee in June 1998. The Government representative made an undertaking that the industrial relations Bill would be passed if possible before Parliament was dissolved later in 1998, thus allaying expressed fears that the Bill would be left in limbo. The Government representative had further indicated that even if Parliament did dissolve, there could be other legal procedures put in place to ensure progress in this regard. The Government representative was pleased to report this year that the Cabinet of Swaziland had debated the Bill, having placed it on top of its priorities, which resulted in the passage and publication of the Industrial Relations Bill No. 13 of 1998 on 5 August 1998. When the Bill was finally approved by the Cabinet, it essentially did not depart from the thematic and philosophical background characterizing the draft which had been submitted by the Labour Advisory Board to the Minister for Enterprise and Employment for his consideration.

The Government representative nevertheless pointed out that as part of the democratic processes of the country, the term of office for the Sixth Parliament of Swaziland had come to an end in August 1998, thereby necessitating that Parliament be dissolved so as to give way to fresh elections. This happened at a time when the Bill was ready for tabling in that legislative body and, in the circumstances, the Bill was submitted for consideration by the Council of Ministers, which was the legislative body that could pass any legislation in the absence of Parliament. The Council of Ministers debated that Bill at length after which, in November 1998, the Prime Minister issued a public statement explaining that when considering the Bill, the Council of Ministers had concluded that due to the importance of the Bill, it had to be considered and passed by a representative Parliament as against the 16-member Council of Ministers. Thus the Bill was deferred to await the new Parliament. After the elections, and soon after the commencement of its business, Parliament made the Bill its priority, such that when the House of Assembly completed the Appropriation Bill, 1999, on 23 April 1999, the Industrial Relations Bill was immediately tabled on 12 May 1999. On 17 May 1999 the House of Assembly agreed that the Bill would be processed for consideration by the Committee of the Full Parliamentary House which started its work in earnest on 24 May 1999, and so far had progressed very well, having gone through and passed more than 30 sections of the Bill already.

The Government representative believed that, considering the few minor changes that had been made by Parliament so far, even if there were any changes introduced, they were not going to be changes that would contradict provisions which were based on the international labour standards which his country had ratified. Furthermore, while he appreciated that it had taken the country longer than hoped to pass a new industrial relations act, he did not believe that this should be equated to a no-progress situation.

Regarding the fear that both the Public Order Act of 1963 and Proclamation No. 12 of 1973 could be used against organizations exercising their bona fide rights as enshrined in ILO Conventions, he pointed out that the Industrial Relations Bill presently being debated by Parliament would adequately address this fear.

The speaker stressed that good progress was being made towards stable and mature labour relations practices in the country. All the social partners were learning how to play their roles so as to effectively promote workers' rights. Where any party went out of line, the industrial court was there to protect the other party (or parties). For example, government employees had recently and successfully taken their employer (the Government) to court over a certain disagreement and the Government had accepted the court ruling. With the passage of the Industrial Relations Bill, labour relations would mature to an extent that all social partners would understand their responsibilities and how those respective responsibilities factored into the overall national and global initiatives.

In conclusion, the speaker reaffirmed that the Industrial Relations Bill no longer represented the sole interests of a particular component of the tripartite formation. Once again he reaffirmed his Government's support for the ILO's objectives and indicated that it would do everything to observe its obligations.

The Worker members pointed out that Swaziland had become a regular customer in this Committee over the last four years for violating Convention No. 87 in both law and in practice. The Committee on Freedom of Association also continued to examine the follow-up to the complaint against the Government of Swaziland by the ICFTU in 1996. During the discussions in this Committee in June 1997, when in fact this case was mentioned in a special paragraph of the report, the Government gave a firm promise to amend the 1996 Industrial Relations Act by August of that year. Not only did it break that promise, but the Act remains in force today. The Act perpetuates restrictions on trade union rights from the 1980 Industrial Relations Act and seriously violates the right to organize and to strike in many respects, and including imposing penal sanctions for legitimate trade union activities, allowing the Labour Commissioner to refuse to register a union if one already exists in the sector, banning federations from calling rallies or mass meetings, and prohibiting a federation or any of its officers from causing, or initiating, the cessation or slow down of work or economic activity upon punishment of imprisonment.

They recalled that in June 1998, the Government was urged to take urgent measures to introduce a newly drafted Bill into Parliament in order to amend the 1996 Act. It was urged to do so before Parliament was dissolved for elections. An amendment Bill had been prepared by a national tripartite committee with the technical assistance of the ILO, yet the Government did nothing. Instead, in July last year, shortly after the June Conference, press reports said that the Government was threatening to pull out of the ILO because the ILO had criticized it for violating basic trade union rights and civil liberties. Harassment of the Swaziland Federation of Trade Unions, the SFTU, and its leaders had not abated. In October 1998, the Commissioner of Labour suspended the SFTU for one month and threatened to deregister it, because the union had not submitted an annual financial report to the authorities -- yet the accounts were in the process of being audited because the SFTU had changed its financial year to end on 30 September. During the same month, the former treasurer of the SFTU, Mxolisi Mbata, died as a result of police brutality in February 1997 after the police had broken up an SFTU general council meeting on the eve of a national stay away. All the executive members had been forced to go to the police station, including the SFTU treasurer, a wheelchair user, who was thrown from his chair and forced to crawl to the police station. They were all locked in a room full of tear gas, until the next day, when they were beaten up and interrogated.

In November, instead of submitting amendments to the 1996 Industrial Relations Act to Parliament, the Government found time to decree the Swazi Administrative Order, known as the Chiefs Bill. This, in fact, amounted to forced labour and enabled village chiefs to order citizens to provide services, namely to weed their fields, under penalty of imprisonment or a fine for denying an order. During the same month, the SFTU General Secretary, Jan Sithole, and another SFTU official, Donald Dlamini, and two others were arrested. They were later released, except Jan Sithole, who was held incommunicado until the next day. The police said that the arrests were in connection with a bomb blast some weeks earlier, although the SFTU had thoroughly condemned it at the time. An official from the SFTU transport workers' union, Patricia Mamba, was arrested later in November when the police raided the union's offices and confiscated equipment. She was not allowed to see a lawyer.

The harassment and intimidation went on in 1999 and the SFTU President, Richard Nxumalo, and the Vice-President, Eliot Mkhatshwa, were arrested and detained on several occasions. Jan Sithole's family received anonymous and threatening telephone calls. On 12 January the Deputy General Secretary, Barbara Dlamini, and the Assistant General Secretary, Zodwa Nkhonta, were arrested and detained for several hours. In March, during collective bargaining negotiations between civil servants, nurses and teachers and the Government, the Minister for the Public Service called a press conference and announced that everyone who wanted a pay increase, should go to his office and sign a form. They would then receive the money. In this way he flagrantly circumvented the union's recognition agreements. This action was roundly condemned in the Industrial Court which ruled fairly and squarely in favour of the unions. In fact the Court said that the Government "had subverted collective bargaining and breached its duty to bargain in good faith". When the three public sector associations tried to hold a protest march, the police announced that they would use everything in their power to make sure that the march did not take place. The 1973 Decree on meetings and demonstrations was used to stop the march from going ahead, despite the fact that the Government has stated on several occasions in this very Committee that the law was of no relevance to trade union organizations. Marching workers were also brutally beaten by police in riot gear. Furthermore, the Worker members stated that the 1973 Decree was used to prevent group submissions being made to the sham Constitutional Review Commission, which was set up in 1996. Only individual submissions could be made, and, owing to a recent decision of the Government, all submissions had now to be made "in camera". In April, the Swazi Parliament called for the General Secretary of the SFTU, Jan Sithole, and the President, Richard Nxumalo, to be deported, on the false allegation that they were not Swazis. This very same argument had been used four or five years ago to intimidate the SFTU leaders.

Finally, as the Minister told this Committee, just before this year's ILO Conference, on 12 May the Government submitted the Industrial Relations Amendment Bill to Parliament. The Worker members indicated that Parliament had now begun to amend the Bill, and they were concerned that a satisfactory piece of legislation might once again be brought into conflict with the Convention. Parliament had announced that it would not rush the Bill because the SFTU boycotted the 1998 elections. Fortunately, a parliamentary motion to defer the Bill to a select committee for review, failed.

The Worker members then pointed out that the industrial relations climate in Swaziland continued to be far from harmonious. The Government had broken its promises to this Committee on several occasions. Both the 1973 Decree and the 1963 Public Order Act remained in force, and had been, and were used, to suppress legitimate trade union activities. The Industrial Relations Act was still in force and the Bill in Parliament, which was agreed upon by the social partners and the ILO, was now being amended.

They recalled that in the conclusions last year, this Committee requested the Government to establish an independent inquiry into the 1995 abduction of Jan Sithole and the 1996 killing of a child, Noxolo Mdluli, during a demonstration. This also has not been done. They, therefore, reiterated the conclusions of this Committee in June 1998, and requested the Government to report progress to the Committee of Experts. The Government had to apply the Convention in both law and practice, and fully respect civil liberties. It had to cease harassment, threats, malicious arrests, intimidation and victimization of trade union leaders.

In conclusion, in the alarming and frustrating circumstances which continued to exist in Swaziland, the Worker members appealed to the ILO to send another high-level direct contacts mission, to follow-up on the 1996 mission. The Workers' group believed that such a mission would be timely, and looked forward to hearing the Government accept this proposal with good will.

The Employer members stated that this case had been discussed several times by the Conference Committee and that a direct contacts mission had taken place in 1996. It related to numerous discrepancies between the 1996 Industrial Relations Act (IRA) and the provisions of the Convention. A national tripartite committee had been established and had agreed upon amendments to be taken to bring the national legislation into conformity with the principles enshrined in the Convention. The lack of detailed information to the Committee, as to the content of this Bill, was of no importance as long as the social partners and Parliament had agreed on the amendments to the legislation. The Employer members noted that the 1973 Decree and the 1963 Act concerning mass actions could result in a disturbance of the peace. Apparently, these provisions had been used in the past to suppress legitimate trade union activities. The Employer members recalled the 1998 conclusions on the case in which the Government had been urged to adopt the Bill to amend the Labour Relations Act before Parliament was dissolved. However, a new Parliament had been installed before this could take place. In this respect they noted the indication of the Government representative according to which the Bill had been submitted to Parliament in May 1999. In conclusion, the Government should be urged to intensify its efforts with respect to the adoption of its legislation which would amend all provisions contrary to those of the Convention. Moreover, the Government should provide full particulars in order to enable the Conference Committee to examine the case again if necessary.

The Worker member of Swaziland reviewed the background of this case as described in Case No. 1884, which was brought before the Committee on Freedom of Association. Following the ILO direct contacts mission, which took place after complaints were raised by workers, the Committee had concluded that the Industrial Relations Act of 1996 was incompatible with the principle of freedom of association and should be amended, giving consideration to the proposals of the Tripartite Labour Advisory Board. The Committee also noted that section 12 of the 1973 Decree, restricting the rights of organizations to hold meetings and peaceful demonstrations, should be repealed. It asked the Government to immediately institute independent inquiries into the death of a 16-year old schoolgirl allegedly shot and killed by the police during a peaceful demonstration, as well as into the abduction of the SFTU Secretary-General, so that the guilty parties could be brought to justice. Further, the Government was requested to ensure that the Public Order Act of 1963 was not used to ban strikes or to oppress legitimate and peaceful strike action. While the Government had promised to address these concerns, there were no concrete results to date. Instead, there were only continued violations, complacency and new decrees that further eroded human dignity and social justice.

He recalled that the Government had made promises to the Committee last year and in certain formal meetings with high-level ILO officials that the Bill would be adopted before Parliament was dissolved. He noted the Government representative's promise, that, even if Parliament were dissolved, the Council of Ministers had a mandate to enact the Bill in the absence of Parliament. Moreover, the Government had promised Swazilanders that the Bill would be given priority immediately following the debate on the budget. None of these undertakings had been fulfilled. In fact, the Bill was only presented to Parliament on 12 May 1999. Moreover, parliamentarians indicated that they would not rush the debate on this Bill, questioning why they should worry about a workers' Bill when workers had boycotted elections held in October 1998.

He made reference to numerous acts of harassment of union leaders that had taken place during 1997 and 1998. This harassment included police raids of union offices and the homes of union leaders, often without search warrants. A number of the incidents described also involved physical violence and threats against the union officers.

Reference was also made to workers' attempts to celebrate May Day. The local government of the City of Manzini had denied workers permission to conduct their celebration on government property. Their celebration was subsequently held on the premises of a private company. Nevertheless, when workers whistled during the celebrations, presumably to express their excitement, the Government and elders threatened to impose criminal sanctions on the workers.

He considered certain Swaziland legislation to be in conflict with the Convention, describing the so-called Constitutional Review Commission (CRC) as non-democratic and non-inclusive with regard to membership and acceptance of submissions. He cited the Media Council Bill, which restricted the right to free expression and free journalism, and the 1973 Decree withdrawing the protection of the Bill of Rights.

He pointed out that the 1973 Decree was regarded as the supreme law of the country. This Decree had usurped the Swaziland Constitution, including the Bill of Rights guaranteed in that instrument, including freedom of expression, association and assembly. In 1996 and 1998, the Committee of Experts had advised the Government that the Swaziland Administration Order of 1950 was not in conformity with the Convention. On 13 November 1998, the Government enacted an order repealing the 1950 legislation. However, he stated that the 1998 Order was worse than the previous legislation it had repealed. He described the 1998 Order as draconian and maintained that it was intended to exacerbate fear and oppression. He stated that the 1998 Order violated basic trade union rights, pointing out that it permitted local chiefs to introduce forced labour and servitude and impose penalties on citizens for non-compliance. The penalties that chiefs could impose included fines, imprisonment, demolition of structures, eviction without compensation and attachment and sale of citizens' property in the event that they failed to pay the fines imposed. The Order also denied citizens the right to representation before the chief's court and provided that no other court had jurisdiction to set aside the chief's orders. He indicated that these "kangaroo" courts were not acceptable and should not be allowed. In his view, the Government clearly wanted to leave the ILO with the impression that the new Industrial Relations Act would bring Swaziland legislation into conformity with the Convention. However, while the other legislation mentioned was still in effect, any new legislation adopted would continue to be undermined. He indicated that, while the Government was making promises to the Committee at the international level, national laws were being promulgated that undermined those promises. He pointed out that Swaziland had ratified ILO Conventions and was, therefore, internationally accountable with regard to the practical application of those Conventions. He, therefore, called for the Government to bring its legislation into conformity with Convention No. 87 and implement its provisions in law and practice.

The Employer member of Swaziland joined the previous speakers in expressing his regret at the delays in adoption of the Bill. However, he maintained that he still believed progress was being made. He noted that the Bill had gone to Parliament in less than two weeks and believed that the Bill would in fact become law by the end of the year. The amendments proposed so far did not materially affect the agreements made with the social partners. Recognizing that the Government may not have performed well in the eyes of the ILO in the past, he nevertheless expressed his view that the Government needed to be encouraged at this time. He pointed out that it would not be helpful to lambast the Government representative. Instead, he urged the Committee to send a message asking the Government to speed up the adoption of the proposed Bill.

The Worker member of the United States expressed his full support of the comments made by the Worker members, as well as by the Worker member of Swaziland. He noted that the AFL-CIO had submitted a petition to the US Trade Representative's Office, requesting that certain trade privileges currently enjoyed by Swaziland under the US Generalized System of Preferences (GSP) programme be suspended due to its systematic violation of workers' rights. The petition had indicated that the Government's enactment of the draft labour law was the primary measure that should be used to determine whether Swaziland was taking steps to respect basic worker rights and whether it should, therefore, retain its GSP privileges. Given the assurances of the Government representative last year, it was anticipated that the new labour law would now be in place. He expressed his regret that this had not occurred and that the Government had displayed a lack of urgency in introducing the legislation in Parliament. Accordingly, the AFL-CIO would submit supplementary information to the US Government expressing its disappointment at the lack of progress in this regard and renewing its request that Swaziland's GSP privileges be suspended due to its systematic violation of worker rights.

The Worker member of South Africa recalling the strong political, economic, social and cultural ties existing between his country and Swaziland, which justified that the developments in the latter be followed very closely, supported the views expressed by the Worker members. He took note of the information provided by the Government and the commitments made to bring labour legislation in line with the provisions of the Convention. He observed, with some scepticism, that these statements were the same as those made by previous labour ministers over the past five years, without any noticeable practical progress. He insisted on the fact that the extent to which a country complied with the provisions of the Convention could be said to be a measure of how it respected civil liberties, including and in particular, freedom of association. He insisted on the importance that the 1996 Industrial Relations Act, the 1973 Decree and the 1963 Public Order be amended and/or repealed.

The Employer member of South Africa welcomed the Minister's report that the Industrial Relations Bill was presently before Parliament and expressed his appreciation of the Minister's personal efforts to expedite the passage of the Bill. The drafting of this Bill by a tripartite committee with the assistance from the International Labour Office was an important step in bringing labour law in Swaziland into conformity with international standards. He regretted that the Government had been unable to secure the adoption of the Bill before the dissolution of the Parliament last year, as urged by the Committee of Experts and this Committee. However, until this Bill had been adopted and promulgated the present case could not be regarded as having been brought to a successful conclusion. He noted, with concern, however, that the alignment of Swaziland's laws with its international obligations, did not appear to enjoy a particularly high priority or urgency. Reports in the Swaziland press indicated that at least some degree of delay in the legislative process was apparent. As recently as 15 May 1999, a report was published which referred to statements by Members of Parliament that this issue was not pushed because the unions did not participate in the elections last year. This report, as well as a recent report of calls by a Member of Parliament for the deportation of the President and founder of the Swaziland Federation of Trade Unions, were not conducive to a climate in which an expeditious resolution of this matter could be found. The speaker noted, however, that progress was always welcome and he acknowledged that since last year's discussion there had been some progress, but this Committee would not yet record a satisfactory outcome.

The Government representative thanked the members of the Committee for their comments. Taking note of the issues raised, he indicated that his Government was making all efforts to ensure that progress was made. It was willing and prepared to sit down with the social partners to resolve these issues. He indicated that the concerns raised by the Employer member of Swaziland had been referred to the Labour Advisory Board but that, since the Board's report had not yet been received, it could not yet determine the best manner in which to proceed. With regard to the issue raised by the Worker member of Swaziland regarding whistling during the May Day celebrations, he indicated that he did not expect the Committee to understand the full implications of this incident, but that he hoped that the social partners could resolve this issue in Swaziland. He reiterated his appreciation for the concerns raised and assured the Committee that he was doing everything possible to proceed with the adoption of the Bill.

The Worker members appreciated that the Government was attempting to move forward in the direction recommended. However, they requested the Government representative to respond to the comments raised regarding the appropriateness of a direct contacts mission.

Responding to the query of the Worker members, the Government representative of Swaziland indicated that, as a Government, Swaziland had not yet seen the need for a high-level contacts mission. It had extended an invitation to the ILO to visit Swaziland; however, if the Committee concluded that it was necessary for a high-level ILO mission to come to Swaziland, the Government would abide by that decision.

The Employer members could not accept the proposal by the Worker members for a direct contacts mission as the parties concerned had already agreed to introduce changes into the legislation and all that remained was for them to be adopted by Parliament. The question of the mission could be discussed the following year in the light of developments in the case and the information to be given by the Committee of Experts. The Employer members did not object to the request by the Worker members that the present meeting of the Committee reaffirm its conclusions of the previous year on investigations relating to certain acts of violence.

The Committee noted the oral statement made by the Government representative and the discussions which took place thereafter. It recalled with concern that this case had been discussed by the Committee in 1996, 1997 and 1998. It recalled that the Committee of Experts had raised concerns about numerous provisions of the 1996 Industrial Relations Act which considerably limited the right of workers' organizations to organize their activities without interference from the public authorities in contravention of Articles 2 and 3 of the Convention. It regretted that no amendment regarding this legislation had yet been adopted. It further recalled with regret that the Committee of Experts had observed that the 1973 Decree on meetings and demonstrations placed important restrictions on the rights of organizations to hold meetings and peaceful demonstrations and that the 1963 Public Order Act had been used to hinder legitimate trade union activities. Last year the Committee had welcomed the Government's indication that a new Industrial Relations Bill had been drafted, in consultation with the social partners and with the assistance of the ILO, with a view to bringing legislation into conformity with the Convention. Deeply regretting that this new Bill had not been adopted before dissolution of Parliament, it once again strongly urged the Government to take the necessary steps to adopt this Bill and to ensure that the 1973 Decree and the 1963 Public Order Act did not interfere with the rights of workers' organizations to organize their administration and activities and to formulate their programmes. The Committee expressed the hope that the Government would establish independent inquiries into the abduction of the Secretary General of the Swaziland Federation of Trade Unions and the killing of a child during a demonstration. It asked the Government to fully respect the civil liberties essential to the implementation of the Convention. The Committee also urged the Government to supply a detailed report to the Committee of Experts on the concrete measures taken to ensure full conformity with the Convention, both in law and in practice.

Individual Case (CAS) - Discussion: 1998, Publication: 86th ILC session (1998)

A Government representative, Minister of Enterprise and Employment, reaffirmed that, as a member of the ILO since 1975, Swaziland supported the good intentions for which the Organization had been established, as set out in the Preamble of the ILO Constitution. Swaziland also respected the mechanisms established by the ILO, including its standards-setting and supervisory machinery for the application of standards. Moreover, structures such as the multidisciplinary advisory teams and area offices played an important role in furthering the ILO priorities of social justice and human dignity.

In the Conference Committee in 1997 his Government had stated its commitment to dealing on an urgent basis with any discrepancies between national law and practice and the Convention, whether perceived or real. Moreover, a programme of action had been discussed with high-level ILO officials to address those discrepancies. Since then, a number of measures had been taken to develop consensus. Soon after the last Conference, the Labour Advisory Board (LAB), which had a tripartite structure, had convened a meeting to review the Industrial Relations Act, 1996. It had subsequently convened a meeting of stakeholders, including private individuals, employers' and workers' organizations, government officials, university academics, representatives of small businesses and the Chamber of Commerce and Industry, who had reached an understanding on the type of industrial legislation suitable for present-day Swaziland. A drafting committee had been set up and had worked with an ILO expert to produce a suitable document, based on ILO labour standards, including Convention No. 87, to regulate industrial relations and the socio-economic advancement of the country. In March 1998, the document had been presented by the LAB to the Ministry responsible for labour relations as a draft Bill, from where it was forwarded to the Attorney-General's Office and then submitted to the Cabinet, where it was under consideration by the Government. On the whole, the draft text should be acceptable and the comments of the Committee of Experts concerning the Convention would therefore be addressed. It was to be regretted that the process had not been more expeditious. However, it was clear that the Government was keeping faith with its commitment and was rediscovering the value of tripartism. He therefore emphasized that, although it had been the intention of the Government, as stated in the Committee in the previous year, to submit amendments to the 1996 Act by August 1997, it had been seen with the social partners that so many changes were needed that it would be better to start afresh.

The draft Bill sought to bring the industrial relations legislation of Swaziland into close conformity with international labour standards by repealing the 1996 Act and by focusing on the promotion of harmonious industrial relations, fairness and equity, freedom of association, the establishment of new mechanisms for the resolution of disputes, the protection of collective bargaining and the entrenchment of international labour standards in national law and practice. In addition, in formulating the Bill, care had to be taken to address the comments of the Committee of Experts on the following points: the removal of prison staff from the category of services which did not exercise the right to organize and collective bargaining; the acceptance of a multiplicity of trade unions; the possibility for workers and employers to be able to undertake peaceful protest action; the extension of the activities of federations beyond the provision of advice and services to their members; and the power of the Minister to apply to the Court for an injunction in the national interest, where such interest was defined as only involving danger to life, health and property. The Bill did not prohibit sympathy strikes. Moreover, it had captured the point raised by the Committee of Experts that the strike ballot requirement should not be such as to deny the right to strike. It sought to decriminalize industrial relations to a large extent and revised the rules limiting non-occupational activities of organizations or federations, in accordance with the comments of the Committee of Experts. After the Bill was adopted, it should no longer be the case that the courts could cancel or suspend the registration of organizations for certain violations.

With regard to the concern expressed that the 1973 Decree on meetings and demonstrations placed restrictions on the rights of industrial organizations to hold peaceful demonstrations, he reaffirmed that the Decree was of no relevance to such organizations, whose rights and guarantees had been amplified in the labour legislation that had been adopted in both 1980 and 1996. In both cases, the intention of the legislation had been to separate traditional labour relations matters from purely political ones. He emphasized that there was no law or policy preventing any member of a workers' or other organization from calling for the repeal of the Decree. On the question of the repeal of the 1973 Decree or the introduction of legislation respecting the political arrangements of the country, the King had appointed a Constitutional Review Commission. The Constitutional Review Commission represented a cross-section of society and enjoyed the support of the international community, which had provided financing for its work. The impression that the 1973 Decree prohibited trade union activities was therefore misleading and incorrect.

In conclusion, he believed that Swaziland was progressively moving towards full compliance with the Convention and undertook to do his best to defend the proposed Bill in Parliament. He trusted that the ILO would continue to support the preparation of the Bill. He therefore believed that the question of the application of the Convention by his country should no longer appear in a special paragraph of the Committee's report. Like other countries, Swaziland might not be perfect, but its Government was doing its best to meet the conflicting demands of a growing population within increasingly diverse needs and expectations. He therefore expressed gratitude to the employers and workers of Swaziland for their enduring dedication to harmonious industrial relations which were in conformity with international standards. Their cooperation was greatly appreciated and he trusted that it would be continued until the Bill was finally adopted.

The Workers' members thanked the Government representative for his fine words. Unfortunately, the Committee had become accustomed to fine words of this type when it had examined the case in 1996 and again in 1997, when it had appeared in a special paragraph of the Committee's report. The Government had promised in 1997 that discussions on amendments to the 1996 Industrial Relations Act, which contained numerous discrepancies with the Convention, would take place with the social partners in June 1997 and that the amendments would be adopted by Parliament in August 1997. The Workers' members regretted that, despite this undertaking, no amendments had yet been adopted. However, a new Industrial Relations Bill had been drawn up with ILO technical assistance, on which the social partners had been fully consulted; and they found it acceptable. This gave some hope that the Government genuinely wished to reform the labour legislation. It was also to be hoped that this could signal the beginning of a new attitude on the part of the Government towards ensuring that democratic rights and freedoms were respected in Swaziland.

The 1996 Industrial Relations Act, which remained in force, imposed excessive restrictions on the right to strike and prohibited the right to strike of federations under the penalty of imprisonment. It denied the right to organize for prison service staff and granted the labour commissioner the authority to refuse to register a trade union if he or she was satisfied that there was already a registered trade union in that sector. It also provided the authorities with broad powers of supervision over trade unions, limited the activities of federations to providing advice and services to their members and required the Minister of Labour to be consulted before international affiliation could take place. The Act allowed the courts to dissolve federations or trade union organizations which had spent more time campaigning on public issues than protecting and advancing the rights of their members. In short, the Act clearly violated the right to organize and strike and was contrary to the Convention and the decisions of the Committee on Freedom of Association.

Provisions of other laws also contravened the Convention. Section 12 of the 1973 Decree on meetings and demonstrations placed important restrictions on the right of organizations to hold meetings and peaceful demonstrations. The Decree also placed restrictions on freedom of opinion. Despite the statement of the Government representative, the 1963 Public Order Act, as the Committee had heard last year, was another tool which could be used by the authorities to oppress legitimate and peaceful strike action. Indeed, since the last Conference, the Swaziland Federation of Trade Unions (SFTU) had held a programme of mass action to press for the reform of the Industrial Relations Act after the Government's promises to amend the law had come to nothing. The SFTU had also continued to press its other social, economic and democratic demands. The results were well known. The police and army had been deployed in force, and 17 union officials and leaders had been dismissed from the Simunyane Sugar Company, which was partly owned by the Government, for participating in a "stayaway". Armed troops and artillery, including armoured vehicles, had subsequently been stationed in and around the factory. There had also been mass marches of SFTU members, professional associations, parents and students, one of which had gone to the airport when the King was returning from the Commonwealth Summit. Security forces had shot at the crowd with live ammunition and tear gas. Many people had had to go to hospital with serious injuries. Although the level of violence, harassment and victimization against the SFTU and its leaders had not been quite so severe as in the period leading up to the discussion of the case in 1997, the Workers' members remained seriously concerned about the lack of respect for civil liberties in Swaziland, and in particular the violence used by the police.

Against this background, the Constitutional Review Commission set up in 1996 to determine the way forward for the country had unfortunately come to nothing because it had not been accepted by the people of Swaziland. It had not permitted the participation of representative organizations and the 1973 Decree on meetings and demonstrations stood as a constant threat to any process of consultation of interest groups. For this reason, the Workers' members called for the Decree to be repealed. Moreover, instead of evaluating why the process did not work, the Government had called for elections to be held under the unrepresentative system in force. Many sectors of society, including the trade unions and the churches, were intending to boycott the election. It was therefore time for progress to be made on the issues discussed in the Committee for the past two years. It was imperative that the draft labour law be adopted. However, the Government had stated that Parliament would be dissolved at the end of July in view of the elections called for October. In this respect, it was somewhat curious that Parliament was being dissolved so much earlier than had been the custom in the past. Nevertheless, it appeared that there was still time for the Bill to be passed before Parliament was dissolved, if the political will existed. First of all, the Bill had to be adopted by the Cabinet, which was scheduled to discuss it in the middle of the month. After adoption by Cabinet, the draft had to be made public for 30 days before being submitted to Parliament for adoption. The Workers' members insisted on a firm commitment from the Government that the Bill would be adopted before the Government was dissolved at the end of July. They also called upon the Government to repeal section 12 of the Decree of 1973, amend the 1963 Public Order Act, and put a definite end to the harassment and victimization of trade unionists and to the use of force in industrial disputes and peaceful marches and protests. They also strongly recommended the Government to negotiate with the social partners in good faith over the remaining SFTU demands to allow freedom of the press and freedom of expression generally, to establish independent inquiries into the unsolved incidents which had taken place over the past few years and to fully respect democratic rights and civil liberties.

In conclusion, they recalled that Swaziland was a member of the Governing Body. It would appear to be logical and essential that members of the ILO Governing Body upheld the ILO Constitution. As the Worker delegate of Swaziland had stated in the general debate, if Governing Body members did not comply with the provisions of Convention No. 87, what incentive was there for other governments to do so? They therefore called on the Government to give a firm assurance regarding the adoption of the draft labour Bill before Parliament was dissolved.

The Employers' members recalled that this case had been discussed twice previously by the Committee and noted that the earlier interventions had adequately identified the principal issues involved. The Committee, as well as the Committee of Experts, had had the occasion to note the several inconsistencies between the provisions of the Industrial Relations Act and the Convention. These inconsistencies put substantial limitations on the exercise of freedom of association by, for example, limiting sectoral affiliation, restricting the registration of unions, providing many opportunities for the intervention of public authorities, and requiring prior authorization for international affiliation. The restrictions on the right to strike were a distinct problem into which they did not wish to delve except to note that the right to strike did not appear in the provisions of the Convention. As in other cases familiar to the Committee, the Government representative had used many arguments to show its goodwill in bringing legislation into conformity with the Convention: tripartite consultations had taken place, the recommendations of the direct contacts mission had been taken into account, and a draft law which would meet the requirements of the Convention was close to being adopted into law. The Workers' members had confirmed that the draft was acceptable and contained significant improvements. It had been submitted to the Ministry of Labour in March and the draft was now being examined by the Cabinet. The Government was urged to clarify where the draft stood in the legislative process in so far as changes in the Parliament could be expected after new elections. The Government representative had expressed the hope that the draft would become law before the dissolution of Parliament, but he was evasive about the prospect of adoption in the near future. The Employers' members observed that the absence of disagreement on the need to amend the legislation was a positive development. It should be the hope of the Committee that the draft would quickly be adopted into law.

The Worker member of Swaziland appreciated the assistance given by the ILO in drafting a new Industrial Relations Bill. Although it had not yet become law, the Bill met the concerns raised by the Committee of Experts. It decriminalized industrial relations, enabled freedom of association from the enterprise to the national and international level, including to prison staff and broadcasting personnel, gave the right to strike to all but those in essential services, removed the Government's right to unilaterally enjoin a strike or lock out, enabled federations to bargain collectively, and permitted protest march action on socio-economic issues. He warned, however, that the proposed reforms did not address broader issues related to civil liberties brought into question by the use of section 12 of the 1973 Decree on meetings and demonstrations. With this provision still in force, voices of dissent remained muted. The Government continued to be intransient to demands to reform sections of the Decree impinging on freedoms of expression, association, assembly and choice. Instead of keeping promises made to the Committee last year to bring legislation and practice into conformity with the Convention, the Government's harassment against workers had increased. On 27, 28 and 29 October 1997, mass protest marches of workers, teachers, students and parents were met by teargas, gunshots and batons. The destination of the first was Cabinet offices and that of the second was the arrival of the Swazi King returning from the Commonwealth Heads of States Summit. On 29 October, marchers attempted to demonstrate upon the arrival of Prince Charles of the United Kingdom. On the same day, a vehicle transporting trade union leaders and shop stewards was chased by police, stopped and its passengers searched and interrogated. Documents were taken as well. The armed forces stepped in as invigilators to supervise the writing of examinations during the teachers' strike then in progress. The continued vitality of section 12 of the 1973 Decree coupled with the provisions of the Public Order Act of 1963, continued to undermine trade union and civil rights and any democratic dispensation process set in motion.

The country was seized with mistrust arising from broken promises. Many touched directly upon results of tripartite negotiations. The products of tripartite consultations included the tripartite task force report and recommendations of 1994, a parliamentary select committee's report and recommendations of March 1995, a bipartite protocol of July 1995, a tripartite protocol of October 1995, and proposed amendments of March 1996 to the Industrial Relations Act of 1996 -- all had not been given effect by the Government. Likewise, for a Bill amending the Industrial Relations Act of 1996, promised to the Committee to occur by August 1997. Empty promises and processes, particularly those with tripartite blessings, could no longer be accepted. In this regard it had recently been announced in Swaziland that the Parliament would be dissolved by the end of July 1998. This forebode the failure to adopt the new law before the end of the year. The announcement had to be taken in light of the fact that Parliament was normally dissolved in October before elections. He feared that if the draft bill was not adopted during the current session of Parliament, the new parliamentarians would not sufficiently appreciate the fine balances made in the draft to accommodate tripartite interests. This likelihood further threatened the possibility of the draft ever being adopted. The Government had ratified the Convention, received technical assistance, and repeatedly promised to take the necessary action. Moreover it was a member of the Governing Body and the Committee's conclusions needed to take into account the message that would be sent to other States if strong terms were not used. An unequivocal commitment was demanded which would guarantee that the draft Bill be made into law before the dissolution of Parliament.

The Employer member of Swaziland welcomed the progress which had been made since June 1997: a tripartite consensus had been reached on a draft Industrial Relations Act which would conform to the requirements of both Conventions Nos. 87 and 98. He thanked the Government and the trade unions for having cooperated in reaching this agreement and the ILO for providing the necessary technical expertise. The Government had been pressed to cooperate by the pending application of the American trade union federation (AFL-CIO) for the removal of Swaziland's preferential treatment in trade relations with the United States. He was saddened, however, by the circumstances in which his country found itself and regretted these circumstances. The Swazi Employers found the threat of the loss of preferential treatment to be unacceptable and therefore profoundly hoped that the draft Bill would be passed into law. In this regard, he emphasized the fact that the Bill was the result of careful tripartite negotiations and therefore had the support of both the workers and the employers.

The Worker member of Norway spoke on behalf of the Nordic Workers' group (Norway, Finland, Sweden, Denmark and Iceland). The Committee had been shocked to learn in 1997 of the gross violation of Convention No. 87 as well as of the Government's harassment and victimization of workers and their deprivation of the fundamental right to organize, to go on strike and to participate in public politics. A special paragraph had been assigned to the case. The Government had promised to amend the law by August 1997, but that promise had not been kept. A new Industrial Relations Bill had been drafted with the ILO's assistance and was finally going to be brought into law, but it still needed to be adopted by Parliament. The prospects for this action seemed gloomy as it seemed likely that Parliament would be extraordinarily dissolved by the end of July and not in October as usual so that the Bill could not be enacted in 1998. She asked whether this was true and observed that if it was, the trade unions would not be permitted to participate in election preparations. She requested a clear answer on when the Government would pass the law. The situation was serious and particularly so in light of the Government's membership on the Governing Body. She looked forward to a strong confirmation by the Government that the draft Industrial Relations Act would be adopted and Swazi workers given the right to function as democratic organizations.

The Worker member of Botswana forwent his comments on the case as he believed that other speakers had and would cover the points he wished to raise.

The Employer member of South Africa observed that progress had indeed been made but asked that it be translated into binding legislation. He observed the negative consequences of the turmoil occurring in Swaziland upon the surrounding countries, which should be brought to an end through the adoption of the draft Industrial Relations Act. A proper conclusion needed to be reached by the Committee in asking the Minister to use all the powers available to him to expedite passage of the draft by Parliament before its dissolution.

The Worker member of the United Kingdom expressed certain doubts as to the procedure that the Committee was expected to follow in this case. Although no new report had been provided by the Government to the Committee of Experts since the Conference Committee had examined the case last year, the members of the Committee were now being called upon to analyse a detailed verbal report by the Government representative. They were not in a good position to do so. He emphasized that the draft Bill formulated by the social partners would address needs of the country in the field of industrial relations. Although the Government representative had made no firm promises in this respect, the Government should be urged to make every effort to adopt the Bill in the very near future in order to release the country from a feudal regime and bring its legislation into conformity with the Convention. In so doing, it would be able to overcome the history of the workers' mistrust of the Government by guaranteeing the basic rights of freedom of association.

The Worker member of the United States confirmed to the Committee that, as mentioned by the Swazi Employer member, the AFL-CIO had submitted a petition to the United States Government requesting that certain trade privileges currently enjoyed by Swaziland under the Generalized System of Preferences (GSP) be suspended because of the Government's systematic violation of fundamental worker rights. This was in accordance with the GSP Statute which conditioned the provision of such trade privileges upon the respect of basic worker rights as defined by the ILO's core human rights Conventions. It had been made clear in the petition, and there were indications that his Government agreed, that the passage of the draft labour law this year was the primary measure which would be used to determine whether Swaziland was taking steps to respect worker rights and therefore should retain its GSP privileges. He hoped and expected that a new law would be enacted this year to bring Swaziland into legal compliance with the Convention.

The Employer member of Lesotho supported the statement previously made by the Employers' members and the Employer member of Swaziland that progress had been made in this case. He noted with keen interest that the draft Bill agreed upon by all tripartite partners was before Cabinet for approval before being tabled in Parliament, which was due to be dissolved in the next two months. He urged the Government representative to take all possible steps to ensure that the Bill was tabled before dissolution of Parliament. The significant contributions of the social partners needed to be consolidated through the adoption of the draft law before becoming subject to possible different views of a new government.

The Government representative thanked all the speakers for the interest they had shown in the situation in his country and their constructive suggestions and comments which would be reported to the Government for consideration and action. In reply to the points raised, he said that most of them had already been covered in his previous intervention. Although promises made in the past appeared not to have been honoured, he emphasized that there was a new atmosphere in the country concerning the claims of the workers and a common position had been reached by the social partners. Unfortunately, since he had no power to speak for Parliament, he was not in a position to say any more than that he would do his best to defend the adoption of the draft Bill. The workers and employers of his country would confirm his commitment in that respect. With reference to the comments made concerning the 1973 Decree, he denied that it had ever been used to suppress workers' activities. Moreover, he affirmed that the 1963 Public Order Act had not been meant to curb trade unions. It was merely a necessary piece of security legislation. In this respect, he regretted the incidents that had occurred during the demonstrations and marches referred to by a number of speakers, but warned that where important public figures were concerned, security measures needed to be taken and there was always a risk of something going wrong. He hoped that it would be possible to investigate the other cases referred to by the Workers' members of the Committee. He emphasized that a new chapter was opening in industrial relations in the country and that every effort needed to be made to ensure that the process was not derailed.

In response to a number of comments by the Workers' members concerning the inopportune dissolution of Parliament and their requests for a firm commitment that the Industrial Relations Bill would be adopted before its dissolution, the Government representative said that it was not certain that Parliament would be dissolved in July. The announcement had not been officially made and, even if it were dissolved, there were possibilities that it might be reconvened to address such an important matter as the adoption of the Bill. He undertook to do everything in his power to ensure that the Bill was submitted to Parliament during the current year.

The Committee noted the statement made by the Government representative and the discussions which took place thereafter. It recalled that the Committee of Experts had raised concerns about numerous provisions of the 1996 Industrial Relations Act which considerably limited the right of workers' organizations to organize their activities without interference from the public authorities in contravention of Articles 2 and 3 of the Convention. It regretted that no amendment regarding this legislation had yet been adopted. It further recalled with regret that the Committee of Experts had observed that the 1973 Decree on meetings and demonstrations placed important restrictions on the rights of organizations to hold meetings and peaceful demonstrations and that the 1963 Public Order Act had been used to hinder legitimate trade union activities. The Committee welcomed the Government's indication that a new Industrial Relations Bill had been drafted, in consultation with the social partners and with the assistance of the ILO, with a view to bringing legislation into conformity with the Convention. It strongly urged the Government to make sure that this new Bill would be adopted before the possible dissolution of Parliament, and would ensure full implementation of the Convention. It further strongly urged the Government to take the necessary measures to ensure that the 1973 Decree and the 1963 Public Order Act did not interfere with the rights of workers' organizations to organize their administration and activities and to formulate their programmes. The Committee urged the Government to respect fully the civil liberties essential to the implementation of the Convention and to apply very rapidly the recommendations of the direct contacts mission, particularly those already agreed upon by the social partners. The Committee expressed the hope that the Government would establish independent inquiries into the abduction of the Secretary-General of the SFTU and the killing of a child during a demonstration. The Committee trusted that the Government would supply a detailed report to the Committee of Experts this year on the concrete measures taken to ensure full conformity with the Convention, both in law and in practice.

Individual Case (CAS) - Discussion: 1997, Publication: 85th ILC session (1997)

The Government supplied the following information:

With regard to Article 2 of the Convention, the status of the Prison Staff is comparable to that of the Royal Swaziland Police and the Swaziland Defence Force: all three are considered as part of the armed forces.

The obligation for workers to organize along industry lines is not known to pose any functional problems and no complaints have been submitted by organizations so far. There is a very small labour force in Swaziland and the multiplicity of unions within the same industry may interfere with the strength of labour unions. The risk facing unions in Swaziland as regards multiplicity is that some unions may exist on paper only, with no real power. Similarly, the power of the Commissioner of Labour to refuse to register a union is due to the small size of the labour force.

There has been a change since the entry into force of the Industrial Relations Act, 1966. Section 41(1) of the Act only provides for consultation of the Minister as opposed to seeking his authorization, which was the case under the 1980 legislation.

With regard to Article 3 of the Convention, the limitation on the activities of federations is necesarry to avoid jurisdictional conflicts between federations and unions. Limits on carrying out political activities are a question of degree. According to the terms of Section 42(1) of the Industrial Relations Act, 1996, federations are entitled to express views on any matter of public administration and public policy. Beyond this point, however, federations risk violating state security-oriented legislation.

Concerning the prohibition of strike action in the postal and public services, this is due to the importance of these services. The teaching service, however, has been removed from the list of essential services (Section 73(6)(a) of the Industrial Relations Act, 1996).

As in any country, the national interest is of paramount importance. The Minister, however, is not the final authority in determining the national interest: his perception of national interest has to undergo the test of the court (Section 70 of the Industrial Relations Act, 1996).

With regard to Section 12 of the 1973 Decree on Meetings and Demonstrations, it is not the intention of this Decree to restrict labour organizations which operate as labour organizations (see also Section 40(2) of the Industrial Relations Act, 1996).

The Industrial Relations Bill of 1995 has now been enacted. The Employment Amendment Bill is still before Parliament.

In addition, a Government representative, the Minister of Labour and Public Service, reaffirmed his Government's commitment to upholding the principles of the ILO as enshrined in its Constitution and the Declaration of Philadelphia. He supported the sentiments expressed by various delegations that had reiterated the need for strengthening the supervisory machinery for the sake of realizing the goal of social justice. There was an equal need to strengthen the ILO's advisory services in order for the constituents to reap the maximum benefit of their membership in the Organization. Ratification of standards in itself was not enough since, after ratification, countries needed to implement them. Of the 31 Conventions ratified by Swaziland, his country had implemented them all, although some discrepancies had been observed. He referred to the written information provided to the Committee. Referring to the observation of the Committee of Experts on the extent to which the Industrial Relations Act, 1996, was found wanting in relation to the Convention, he had noted, with great interest, that it acknowledged that his Government had tried to some extent to bring the law and practice into line with the Committee's previous comments on the legislation, by removing the teaching service from the essential services list. At the same time, some discrepancies had been observed which needed to be rectified. In a document prepared for a meeting of the Labour Advisory Board due to take place on 27 June 1997, his Government would bring these points to the attention of that Board in an effort to bring the recommendations already proposed by the Labour Advisory Board into conformity with ILO standards as much as practice allowed. This arrangement was in keeping with the assurances he had given during the 268th Session of the Governing Body during which he had stated that his Government had no aversion to any proposal to amend the current legislation. His Government was committed to social dialogue and believed that all doors to social dialogue should be open for all concerned. The Prime Minister had indicated that the Industrial Relations Act would be amended if it threatened the nation's peace. This policy statement was later drafted into the Government's Economic and Social Reform Agenda, which was a reform programme with specific deadlines. If all went well and representatives of both capital and labour cooperated with the legislative reform programme, a Bill would be ready by the end of August 1997. The speaker encouraged the Office to consider focusing technical cooperation in his country as a matter of urgency. In this regard, a tripartite meeting of the Swaziland delegation was scheduled in Geneva on 16 June 1997, to be chaired by a senior official of the ILO, and to form part of an ongoing process of consultation and assistance which had begun earlier in the year when his Government's attention had been drawn to the discrepancies in the Industrial Relations Act. It was to be hoped that such interaction would go a long way towards addressing the situation through constructive dialogue.

The Workers' members pointed out that the previous year they had noted that this was one of the most serious cases before the Committee. It was therefore of grave concern that a further deterioration rather than an improvement had occurred. The climate of fear, intimidation and harassment of trade unionists continued. In its observation, the Committee of Experts had noted that the 1996 Industrial Relations Act not only perpetuated most of the previous discrepancies between the legislation and the Convention, but contained new provisions which contravened even further some of the core requirements of the principles of freedom of association enshrined in Convention No. 87. The Act imposed penal sanctions for legitimate trade union activities. Section 30 of the Act granted the Labour Commissioner the power to refuse registration of a trade union if a union already existed in that sector. Moreover, the Act prohibited federations from calling rallies or mass meetings, all of which was in violation of the principles of freedom of association. The Committee of Experts made explicit mention of section 40(3) of the Act which prohibited a federation or any of its officers from causing or inciting the cessation or slowdown of work or economic activity upon punishment of imprisonment. Equally severe penalties applied to organizations or office holders calling for, organizing, or giving financial support to strikes in essential services. However, the Act gave a broad definition of essential services and the Minister of Labour had unilateral powers to amend this definition. The Attorney-General could apply for an order to stop a strike and the Minister of Labour could apply to ban a strike on the basis of national interest which was not defined. The Act severely violated the right to organize and to strike which was clearly contrary to the decisions of the Committee on Freedom of Association which had established that no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike. The Government had introduced this Act without any direct consultation with the social partners. Furthermore, when a tripartite forum rapidly approved a protocol containing 62 unanimously agreed amendments to the Bill, the Government took no heed and had its own original version of the legislation adopted. The Workers' members noted that, according to the direct contacts mission, the Government had been unable to give any convincing explanation for the refusal to amend the legislation so as to take account of the subsequent proposals of the Labour Advisory Board submitted during March 1996. These proposals were substantially similar to those contained in the tripartite protocol. In addition to this new Act, there were other legislative provisions which violated the requirements of Convention No. 87. The 1973 Decree on meetings and demonstrations restricted the right of organizations to hold meetings and demonstrations. Under the Public Order Act, 1963, police permission was needed for certain meetings and public gatherings. Moreover, the police could attend union meetings. Recent events gave cause for great concern. In January 1997, the Swaziland Federation of Trade Unions (SFTU) called a stay-away in an attempt to put pressure on the Government to negotiate 27 demands which related, inter alia, to economic, labour, social and affirmative action issues and called for the lifting of the state of emergency, imposed since 1973, which remained in force. Tripartite discussions had agreed that immediate action could be taken on 16 of these 27 demands if the political will to do so was there. The Committee on Freedom of Association had decided that the two actions taken in support of the 27 demands - one in January 1996 and another in January 1997 - constituted legitimate trade union activity. It had considered that the declaration of illegality concerning these national strikes, taken in protest against the social and labour consequences of the Government's policy, constituted serious violations of freedom of association.

The Workers' members outlined other infringements, in practice, of the Convention: between the night of 31 January-1 February, 1997, four leaders of the SFTU were arrested under section 12 of the Public Order Act, 1963, on charges related to intimidation, for which bail was not granted. All were subsequently acquitted. In dismissing the case, it was reported that the judge used harsh words to the effect that there had never been a case to answer in the first place. This reflected a similar position taken by the judge who had presided over the case against Mr. Jan Sithole of the SFTU and other trade union leaders taken in January 1996, and who was subsequently demoted. The Government was openly using the media to threaten trade unionists and trade union activity. There was evidence of intimidation of the media not to give coverage to trade union activities or the SFTU. The Workers' members noted that, despite the comments made by the Government representative in the discussion of this case last year, broadcasting was still listed in section 73 of the Industrial Relations Act as an essential service, despite the pertinent decisions of the Committee on Freedom of Association. The Government was continuing to use the police and armed forces directly to break up trade union meetings and disrupt legitimate trade union organization, such as the 1 February 1997 raid and search without warrant of the SFTU offices. It was using bullets, tear gas and beatings to break up assemblies, such as the 11 February 1997 shooting at Big Bend. It was perpetuating and intensifying the climate of fear and intimidation surrounding trade unions and trade union activity, such as the incident on 3 February 1997 when 150 armed police fired on 23 General Council members of the SFTU and ordered them to go to a local police station where they were locked in a tear gas filled room, beaten and individually questioned for several hours. It was extending the violence and intimidation to encircle the families, friends and relatives of those trade unionists, such as the February 1997 harassment of Mr. Sithole's mother and close relatives while he was in jail. The Workers' members stressed that the Committee on Freedom of Association had stated clearly that freedom of association could only be exercised in conditions in which fundamental human rights and, in particular, those relating to human life and personal safety, were fully respected and guaranteed. Violence, fear and intimidation and the lack of freedom of expression were incompatible with Convention No. 87, as was the lack of democratic process. So it was with deep concern that the Workers' members noted that there had been no progress on changing the national Constitution, since Swaziland was the only south African country where multi-party democracy had not been introduced. The suspension of the SFTU was now lifted, but not so for the trade unions which had been deregistered under the Act just two weeks ago, and which had lost their right to function, to collective bargaining and to represent their members on the Labour Advisory Board. This deregistration had been carried out by the Labour Commissioner on the spurious grounds that the unions had not submitted their annual returns, even though the Act did not define the period of the financial year. Such administrative dissolution of trade union organizations constituted a clear violation of Article 4 of the Convention and was a measure which should be taken only by judicial decision so that the rights of defence were fully guaranteed.

The Workers' members urged the Committee to adopt extremely firm conclusions in this case since the Government appeared, at best, complacent and, at worst, contemptuous of the supervisory procedures and authority of the ILO. It was time to give a clear message to the Government as there had been ample opportunity to make progress and this had not happened. In practice, the situation had deteriorated. Specifically, the Workers' members wanted to see, within a clearly defined timetable, progress in accordance with the comments of the Committee of Experts and the decisions of the Committee on Freedom of Association on the following points: amendment of the 1963 Public Order Act so that it would no longer be used to oppress legitimate and peaceful strike action in contravention of the principles of freedom of association; repeal of section 12 of the 1973 Decree which placed important restrictions on the right of organizations to hold meetings and demonstrations, so that trade union organizations could operate freely without fear of police interference in trade union affairs; amendment of the 1996 Industrial Relations Act to bring it into conformity with the requirements of the Convention, giving due consideration to the proposals made by the Labour Advisory Board. They asked that the Government ensure that the social partners were fully involved in this process and that the technical assistance of the ILO be sought so that progress could be reported before the next meeting of the Governing Body in November 1997; that it stop any further harassments, threats, malicious arrests, intimidation and victimization of workers, their leaders and their families; and authorize freedom of the press and freedom of expression; establish independent inquiries into the many incidents which had taken place over recent months, including the dismissal of Mr. Jabulani Nxumalo, Assistant General Secretary of the SFTU; and enter into positive and meaningful negotiations on the 27 demands. The Workers' members concluded that this was a case of the most gross, wide-ranging and fundamental violation of the Convention and the principles of freedom of association. The Government should immediately commit itself to the full implementation of the recommendations of the direct contacts mission in a defined, short period of time and accept permanent monitoring of the implementation of these developments by the ILO.

The Employers' members recalled that the application of Convention No. 87 by Swaziland had been already examined by the present Committee in 1996. This case involved numerous restrictions on the exercise of the fundamental rights and freedoms guaranteed by the Convention and, in particular, interference in the internal affairs of the trade unions; the non-recognition of the right of association of a certain group of workers; the power of the Labour Commissioner to refuse to register trade unions if he was satisfied that an already registered organization was sufficiently representative; and the restrictions of the right to organize meetings and to hold peaceful demonstrations. These were flagrant violations which were, on the whole, the same that had been brought to light last year. On the question of restrictions on the right to strike, the Employers' members referred to their own well-known position according to which the point of departure was not an unlimited right to strike. There was no basis in the Convention for the unlimited right to strike, the provisions of the Convention would be infringed where the right to strike was constrained to such an extent that it no longer existed. He recalled that strikes always had an impact not only on the interests of the conflicting parties but also on the rights of persons who were not concerned with the conflict of interests. It was also reasonable to balance the interests of the conflicting parties on the one hand, and of the general public on the other. As for what concerned the qualified majority required when voting on strike action, it was not excessive in itself. What was worrying was that the Industrial Relations Act, 1996, worsened, not improved, the situation. Referring to the direct contacts mission which had taken place last year, they stated that an invitation for such a mission usually constituted proof of the readiness of the Government to change its law and practice to improve the situation. However, the position of the Government with respect to the required changes remained unclear. Although the Government representative mentioned, for example, the existence of tripartite consultations, he did not explain in which manner and on what subjects these consultations were held.Turning to the conclusions of the contacts mission report, the Employers' members recommended to incorporate those points into legislation on which the social partners had already reached an agreement. The Government should accept these recommendations and incorporate them into the legislation. It should provide detailed information, so as to enable this Committee to review the case, if necessary.

The Workers' member of Swaziland pointed out that his country was a signatory to various national instruments but had been in a state of emergency since 12 April 1973 when the rights of citizens had been usurped. This left workers as the only voice for the downtrodden and they had presented to the Government the popular "27 demands" which dealt with, inter alia, labour-related, economic, human and civil rights issues. The Government had ignored the demands, but the SFTU asked for a tripartite forum to look into them through dialogue. A series of tripartite structures was thus set up which deliberated on all the issues and advised the Government accordingly, but again, it ignored all their recommendations. Several international and regional workers' organizations visited Swaziland between 1995 and 1997 in order to help find a solution and their advice was also ignored by the Government on the pretext that it constituted foreign interference in national sovereignty. The Government's inaction had been met with a wave of industrial action, to which the authorities reacted with arrests and the shooting of workers, the lodging of applications in the High Court, for court injunctions to declare intended strikes unlawful; the issuing of extraordinary gazettes declaring the strike unlawful if the Government failed in its court applications; and judges who refused applications would suffer reprimands, demotion and/or dismissal. He considered that the Government had acted in bad faith since it acknowledged the violations of the Convention before international fora and yet remained intransigent at home. The Government had deceived the social partners because it had promised to table amendments to the Act in March 1996, but to date, no such amendments were before Parliament. Furthermore, the Government was not truthful when it stated that it was not aware that trade unions were being harassed: its security forces regularly raided trade union offices, interrupted trade union meetings, detained and arrested trade union leaders and members (including the 23 members of the general council of the SFTU) and physically assaulted them. After describing some of the infringements in practice of the Convention, the speaker stated that the 1996 Act's provisions were a flagrant legislative violation of the Convention and in serious breach of the principles of freedom of association. He expressed the belief that Swaziland and other Governments which were also members of the ILO Governing Body must be advocates and die-hard defenders of ILO principles, especially social justice; and, as such, must lead by an example of exemplary behaviour. Therefore, he agreed with the Committee of Experts and the Committee on Freedom of Association that the Government should bring the legislation into conformity with the requirements of the Convention. The 27 demands should be dealt with seriously once and for all. A clear deadline had to be set for the Government specifying when these issues would have to be tackled and resolved, and the ILO's technical assistance could help in the amendment of the Act. He proposed that this case be mentioned in a special paragraph of the Committee's general report.

The Employers' member of South Africa pointed out that in this case there had been many promises but little progress. The Committee of Experts' observation noted that not only did the 1996 Industrial Relations Act perpetuate the previous discrepancies between the legislation and the Convention, but it contained new provisions which further contravened the terms of the Convention. The Government's behaviour in drafting this Act disclosed a series of breaches of undertakings made to the social partners. In March 1994, a tripartite committee had been established by the Government to consider a series of demands made by the SFTU and significant progress had been made on 21 of the 27 points raised by the Federation. Although the Government expressed its support for some of the recommendations of the tripartite committee, it indicated that it would formulate its own proposals in the form of amendments to the legislation. Early in 1995, the Government published a draft Bill for comment and later tabled it in Parliament but the social partners had not been consulted. Further discussions were held between the Government and the social partners before the Bill reached the Senate because there was general disagreement with a number of its provisions. In July 1995 the tripartite forum adopted a resolution to the effect that it would identify unacceptable aspects of the Bill and attempt to agree on amendments acceptable to all parties. The Government undertook to submit these amendments at the same time as the Bill was presented to the Senate. In September 1996 the tripartite forum formally adopted a protocol containing 65 proposed amendments to the Bill. However, the Government introduced the Bill to the Senate without the amendments. The parties in the tripartite forum expressed their dismay over this turn of events and the Government's good faith was questioned. After the enactment of the Act, further efforts to review it were initiated and the SFTU's concerns were referred to the Labour Advisory Board, which in March 1996, submitted proposals for amendments to the Minister. They had not yet been introduced in Parliament. So the history of this legislation reflected some form of general agreement between the social partners, but mostly a history of unfulfilled promises by the Government. The direct contacts mission that had visited Swaziland in October 1996 noted that no convincing explanation could be given by the Government for either its unilateral decision to redraft the Act or for its refusal to introduce the amendments to the Act proposed by the Labour Advisory Board. Therefore, while he had noted the Government representative's expression of support for the ILO's Constitution and Conventions, what was needed now was some progress in Government action. It should move without further delay to implement the recommendations of the direct contacts mission, with guidance and technical assistance from the ILO.

The Workers' member of the United States pointed out that this was the second consecutive year that this case, which involved fundamental violations of the Convention, was before the Committee. In addition to the violations of a legislative nature, as reflected in the observation of the Committee of Experts, this Committee had heard in great detail about the violations in practice, in particular the intensifying campaign of intimidation and harassment of union leaders and their families. This pattern of behaviour by the Government demonstrated its disdain for the ILO and this Committee. However, it was important to point out to the Government that its behaviour had caught the attention of the Committee of Experts and this Committee, as well as that of the international community. Therefore its days of operating in relative obscurity had passed. The Workers' members were following closely the developments in the country since the personal safety and welfare of members of the SFTU were at stake. If the Government intended to take its obligations arising from the Convention seriously, it had to put an immediate end to its campaign of intimidation and harassment against trade unions and their leaders. Moreover, it had to return immediately to the bargaining table with the SFTU and the employers to negotiate in good faith a revision of the Industrial Relations Act. This year, the Committee should send to the Government an even stronger message than its 1996 conclusions in the hope that it could be influenced to choose the path of the rule of law and respect for basic worker rights, rather than that of repression and increasing international condemnation.

The Workers' member of Zambia asserted that the Government representative had repeated the assurances that his Government had given to this Committee in previous years and had stated nothing new this year. Therefore he fully supported the view that the Government should commit itself immediately before this Committee to engage in effective and genuine dialogue with the workers and employers of Swaziland with a view to amending the Industrial Relations Act and other labour laws in line with international labour standards. Moreover, this action should be accomplished in a short time-frame.

The Government member of the United Kingdom welcomed the fact that a direct contacts mission to Swaziland had taken place and was pleased to note the readiness of the Government to continue its dialogue with the ILO. He supported the Government's request for further technical assistance to tackle the problems which had been identified. While his Government had been very concerned over the arrest in early 1997 of the principal trade union leaders of the SFTU, and had made those concerns clear to the authorities at the time, he was very glad that they had since been released. The Committee of Experts' observation had noted that the Industrial Relations Act, 1996, still contained a number of discrepancies with the provisions of the Convention. He was pleased to hear that the Swazi Government intended to rectify the situation and hoped that it would turn this commitment into concrete action as soon as possible.

The Workers' member of Norway, speaking on behalf of the Nordic Workers of this Committee, expressed grave concern over the violations of the Convention. In spite of appeals by the international community, missions from the ILO and the International Confederation of Free Trade Unions and interventions from trade union leaders from neighbouring countries, the Government had continuously harassed Swazi trade unions and their leaders. She fully supported the comments made by the Committee of Experts on the Industrial Relations Act. It was disturbing that a so-called democratic country still thought it was acceptable for workers not to have the right to strike, for unions to face major restrictions on their right to hold peaceful demonstrations and meetings or for the court to wind up a federation which had been actively campaigning on matters that were defined as political issues but that could not in fact be distinguished from occupational issues. Moreover, trade union leaders had been imprisoned, including the four senior leaders of the SFTU, for having threatened to go on strike over labour demands. Although they were finally released, democratic reforms and the opening of negotiations did not follow and matters had worsened. Just before the present Conference she had heard that the Government had suspended the activities of the SFTU and the 17 unions affiliated to it apparently because of failure to submit on time the 1996 financial reports. It was incomprehensible that trade union activities could be suspended for this reason. She assured Swazi workers that they had the support of the Nordic trade unions. The right to carry out trade union activities, including the right to strike, was so fundamental in Nordic countries that it was hard to believe the action taking place in Swaziland. It was not acceptable that in 1997 workers were denied their most fundamental rights.

The Government member of the United States supported the statement of the Government member of the United Kingdom and hoped that the recommendations of the direct contacts mission to Swaziland would be implemented soon.

The Workers' member of the United Republic of Tanzania endorsed the concern expressed by his colleagues concerning the gravity of the situation in Swaziland. The Government should in no way be proud of the fact that it had ratified 31 ILO Conventions while in practice it violated them daily. He therefore insisted that the Government adopt a clearly defined timetable of action towards applying the Convention, including the repeal of the Industrial Relations Act. It further needed to engage in much-needed dialogue with the SFTU.

The Workers' member of Zimbabwe indicated that the situation in Swaziland, contrary to the promises made here by the Minister in 1996, had deteriorated significantly. The Committee of Experts had identified two aspects to the problem, namely the national legislation and the situation in practice. The Industrial Relations Act, 1996, contained new provisions which contravened the Convention even further as highlighted in the Committee of Experts' observation. In practice, the Government had been harassing the leadership of the SFTU, together with the use of force to prevent workers from holding meetings and exercising their other rights under the Convention. While he supported the need for dialogue, he considered that the authorities were using dialogue as a delaying tactic. This Committee needed to act decisively by including this case in a special paragraph of its report.

The Government member of Zambia, the Minister of Labour and Social Security, expressed his concern over developments in Swaziland. He was of the view that the Government should take steps to move towards democratization and labour rights as had occurred in other countries in southern Africa. Only this could really ensure respect for trade union rights.

The Government representative indicated that he took seriously what had been stated in the Committee. It was obvious from the observation of the Committee of Experts, from the recommendations of the direct contacts mission, as well as from the debate that had just taken place, that the basic problems in respect of the Convention stemmed from the adoption of the Industrial Relations Act, 1996. He reassured the Committee that he had not just made empty promises; his country was genuinely ready to ensure that the provisions of the Convention were complied with. He assured the Committee that the document that had been prepared by the Labour Advisory Board with ILO technical assistance would be discussed on 27 June 1997, and that the social partners should be fully involved. The final amendment Bill would be passed through Parliament by August 1997. He concluded by stating that his Government, like this Committee, wanted the national legislation to be in conformity with the Convention and would take the appropriate measures.

The Workers' members noted that the Government representative had focused his reply on discussions that had taken place in relation to the Industrial Relations Act. However, the conclusions of the direct contacts mission went beyond the Act, since they also related to infringements in practice of the Convention. All that was required was that the Government agreed to commit itself to implement immediately all the recommendations of the direct contacts mission, including those concerning issues beyond the Act. The Workers' members also wanted a permanent monitoring of its attempts to implement these recommendations.

The Employers' members, referring to the recommendations of the report made by the direct contacts mission, insisted on their immediate implementation, particularly with respect to the questions on which the social partners had reached an agreement. Rapid changes were necessary to improve the situation and it would be necessary to review the case in the near future taking into account the regrettable further deterioration in the situation after the direct contacts mission. The Government should supply a detailed report on the amendments and changes brought to the situation. The Employers' members supported the proposal to mention this case in a special paragraph of the Committee's report.

The Committee took note of the written and oral information supplied by the Government representative, as well as the discussion which ensued. The Committee noted the concern expressed by the Committee of Experts and the Committee on Freedom of Association that, despite a direct contacts mission in October 1996 and specific progress concerning the education sector, the Industrial Relations Act, 1996, contained provisions which further violated the fundamental principles of freedom of association. The Committee expressed its deep concern for the numerous and major discrepancies between the national law and practice on the one hand, and the provisions of the Convention on the other. The Committee urged the Government to respect fully the civil liberties essential to the implementation of the Convention and to apply very rapidly the recommendations of the direct contacts mission, particularly those already agreed upon by the social partners. The Committee also urged the Government to take all measures necessary to eliminate the restrictions on the right of workers to constitute organizations of their own choice, to hold meetings and to demonstrate peacefully, to formulate their programmes of action and to bargain collectively. The Committee trusted that the next report would indicate detailed measures adopted by the Government, with the assistance of the Office, to secure the full application of the Convention. The Committee decided to mention this case in a special paragraph of its report.

Individual Case (CAS) - Discussion: 1996, Publication: 83rd ILC session (1996)

A Government representative admitted that prison staff were not recognized the right of association, and stressed that the prison staff in Swaziland were part of the disciplinary forces: their training, their oath of office, and their conditions of service were similar to those of the police, and there existed arrangements for their terms and conditions of service as well as procedures for handling their grievances. In some cases they participated in similar operations and the services in practice were sometimes interchangeable. It was for these reasons that they were classified in the same way as the army, the police, and so on.

As to the second point concerning the obligation upon workers to organize within the context of the industry, he stressed that trade unions in the country were organized in terms of industries, as opposed to craft unions. This point also related to the third question regarding the power of the Labour Commissioner to refuse to register an organization. He emphasized that there was no problem and that no trade union had complained about this aspect. Noting that Swaziland was not the only country where industry unions operated, he declared that no change had been foreseen in this arrangement.

As regarded the obligation for an occupational organization or federation to obtain authorization before affiliating with any international organization, the Government representative stated that under the new legislation no such prior authorization was necessary.

Among the issues raised under Article 3 of the Convention, the first concerned the prohibition of federations from carrying out political activities and limiting their activities to providing advice and services. The Government representative pointed out that under section 38 of the same Act, federations had the right to address issues of public policy and public administration, which opened up the practice of political activity.

Regarding the prohibition of the right to strike in certain sectors, he stated that certain categories of services which used to be classified as essential services like the postal service, broadcasting and the teaching profession, had already been removed from the list and that they no longer fell within the category of essential services. Obviously, certain services remained as essential services because of their importance. For such services, the new Act laid down a way of handling grievances. The shortcoming of having no provision for the settlement of disputes in these particular services had been taken care of by new provisions on how to handle disputes in these services.

As regards the power of the Minister to refer certain matters to compulsory arbitration, the Government representative pointed out that the Minister had the power to apply to the industrial court for a determination as to whether a certain course of action was or was not in the public interest. He emphasized that it was not for the Minister to initiate compulsory arbitration and that the Minister could only apply to the court which decided, based on the evidence heard, whether the case should go to compulsory arbitration.

On the last point concerning meetings and demonstrations, the Government representative underlined that the proclamation of 1973, which included some 15 decrees, had nothing to do with trade unions: the restriction on meetings did not refer to trade unions, and demonstrations could still take place if those who wanted to undertake such demonstrations applied to the Commissioner of Police for permission.

The Workers' members pointed out that this most serious of cases had not been discussed the previous year, but that the observation made by the Committee of Experts in 1995 had been very similar to its 1996 comment. The issue had also been raised in 1993. Since the Committee of Experts had reviewed the matter, the Workers' members regretted to observe that the situation had deteriorated significantly. They identified two essential aspects to the problem, namely the national legislation and the situation in practice.

With regard to the national legislation, there had been some optimism last year that the outstanding issues could be settled. Sadly, this had not occurred. The new Industrial Relations Act of 19 January 1996 ignored the major comments made by the Committee of Experts and instead maintained and even increased government intervention in the internal affairs of trade unions. The new Act imposed penal sanctions for legitimate industrial relations practices. It limited the activities of trade unions to the provision of advice and services. Important powers were given to the Labour Commissioner to interfere in trade union constitutions and to suspend trade unions without judicial review. Furthermore, the Act contained prohibitions on federations from calling rallies or mass meetings, in clear violation of the principles of freedom of association. The Act had been adopted without being examined by the Tripartite Labour Advisory Board and had been condemned by unions and employers alike for its serious violations of trade union rights. The adoption of the Act was a clear indication that the Government had not been sincere in its dealings with the ILO, particularly in view of the ILO technical assistance provided in 1995.

Furthermore, the deficiencies of the legislation were only part of the problem, which was compounded by a general and deteriorating climate of violence, interference and harassment towards trade union officials. In this context, the rule of law had not been respected by the Government and its Ministers. Moreover, the independence of the judiciary had been prejudiced and judges who had applied the provisions of the law to limit the imprisonment, arrest and intimidation of trade union officials had been subject to demotion. In particular, the action taken against the General Secretary of the Swaziland Federation of Trade Unions (SFTU), Jan Sithole, had been particularly extreme. He had been threatened and intimidated before being formally arrested. Once he and other SFTU leaders had been arrested, they had been held under particularly appalling conditions. The Workers' members emphasized the serious nature of the case and insisted on the need for clear and strong conclusions which took into account the above developments. They wanted to see real progress in both law and practice before the next meeting of the Committee of Experts.

The Employers' members observed that, in view of the problems referred to by the Committee of Experts relating to the application of Articles 2 and 3 of Convention No. 87, some of the explanations provided by the Government representative were only partially satisfactory. Full explanation would therefore be needed in a written report. With regard to the non-recognition of the right of association of prison staff, the explanation that this was a result of the similarity of their status to that of the police forces would need to be examined carefully. With reference to the industrial structure of trade unions and the power of the Labour Commissioner to refuse to register a trade union if another workers' organization already existed in the sector concerned, the Government representative had commented that this situation existed with the agreement of all the parties involved. However, the Employers' members noted that the situation was similar to that of the existence of a legally prescribed single trade union in each sector. The Employers' and Workers' members of the Committee agreed with the principle of the unrestricted right of association, which could not be limited on the grounds of the pre-existence of a representative organization. The idea that too much competition between representative organizations could be detrimental to their effectiveness was not contained in the Convention. Referring to the requirement to obtain prior authorization before an occupational organization or federation could affiliate with an international organization, the Employers' members noted the statement by the Government representative that such authorization was no longer required. However, they observed that such a change would need to be reflected in an amendment to the legislation. Referring, in the context of Article 3 of the Convention, to the prohibition in Swaziland on federations from carrying out political activities, the Employers' members stated that it was for the association concerned to decide for itself the extent of its political affiliations. The current restriction in national legislation was not in accordance with the Convention. On the subject of the prohibition of the right to strike in certain essential services, the Employers' members noted that the Committee of Experts always stated that such essential services should be determined in the strict sense, namely those whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Employers' members had often expressed the view that this definition of essential services was unjustifiably narrow. However, this did not mean that they considered that there should be a broad prohibition on the right to strike in essential services. Some criteria had to be adopted in defining such essential services, such as a threat to the national interest, and had to be appropriately explained so that the criteria could be fully understood in practice. It was difficult to understand the precise situation in this respect in Swaziland from the information before the Committee and further explanations would therefore be needed. The Employers' members also called for further information concerning the referral of industrial disputes to compulsory arbitration. They noted that the Government representative had stated that legal authority was required to refer a dispute to compulsory arbitration, and that it was therefore not just an administrative decision. The Employers' members further noted that the restrictions referred to in the Committee of Experts' observation on the holding of meetings and peaceful demonstrations did not, according to the Government representative, apply to trade union organizations. The problem would clearly be solved if the provision did not apply to organizations of employers and workers. If the contrary were the case, the situation would be in violation of the Convention. In conclusion, the Employers' members noted that legislation had been adopted since the meeting of the Committee of Experts. It would therefore be necessary to examine the text and ascertain the measures taken by the Government of Swaziland to bring national law into conformity with Convention No. 87.

The Workers' member of South Africa expressed dismay at the failure of the Government of Swaziland to honour the agreements reached with the Swaziland Federation of Trade Unions (SFTU) and the employers' association. He indicated that he would read out a statement prepared by the SFTU, whose voice had been silenced by their exclusion from the Workers' delegation of their own country. This contradicted the indications made by his Majesty the King of Swaziland to Presidents Chisano, Mandela, Masire and Mugabe concerning the movement to normalize the situation in Swaziland and the need to respect trade union and human rights.

The statement of the SFTU emphasized that the violation by Swaziland of trade union and human rights was well known to the Committee and had been well documented by the Committee of Experts. The Committee of Experts' observation indicated that the Government of Swaziland had undertaken to amend the draconian provisions of the 1980 Industrial Relations Act and the 1973 Decree on Meetings and Demonstrations in order to bring them into line with Conventions Nos. 87 and 98. This commitment had not been fulfilled. The 1996 Industrial Relations Act continued to violate the above Conventions. Moreover, the points raised by the employers' federation and the labour movement had been ignored. Indeed, harassment of the trade union movement had been intensified and had taken the form of the arrest of trade union leaders and workers, the intimidation of trade union officials and members, interference with employment contracts and the use of force to prevent workers from holding meetings or assembling. The instruments used by the Government of Swaziland to deny freedom of assembly and expression were section 40 of the 1996 Industrial Relations Act, Extraordinary Gazette No. 11 of 1996, the Public Order Act of 1963 and Decree No. 12 of 1973. The public authorities were also empowered to interfere with trade union activities in the following ways: the police had the right to stop union meetings; the Labour Commissioner had the unilateral power to dissolve unions or federations, as well as to refuse the registration of trade union constitutions; and unions had to consult the Minister and seek permission prior to their affiliation to any international organization. All of the above were in contradiction with Articles 3(2), 4 and 5 of the Convention. The SFTU agreed with the report of the Committee of Experts that it was a violation of the principles of freedom of association to prohibit strikes in postal services, broadcasting and the civil service, which in Swaziland were classified as essential services. Moreover, the Government undermined tripartism through intimidation and the use of armed forces, the use of extraordinary measures and the use of force to blockade workers' meetings. Issues that were still under negotiation were usually taken to court to prevent industrial action in the event that talks broke down. Some of the members of the SFTU were under threat of imprisonment and there was a danger that the organization might be deregistered for calling a general meeting in violation of the law. In this context, the SFTU questioned the suitability of Swaziland to be a member of the ILO Governing Body, which was the highest international body with responsibility for human and trade union rights and social justice. It hoped that the Government would take this opportunity to put its own house in order. It would be a tragedy and travesty of justice were a Governing Body member to tell violators of ILO principles to do as it said, but not as it did.

In response to some of the issues raised by the Government representative, the Workers' member of South Africa stated that it was still the case that prior authorization needed to be obtained before workers' organizations could affiliate with international organizations. He quoted from section 25, clause 41(1), of the 1996 Industrial Relations Act, which stated that "an organization or a federation comprised solely of employees' or employers' organizations may affiliate with and participate in the affairs of international workers' or employers' organizations (...) provided that before making an application for membership in any such international bodies the organization or federation shall first consult with the Minister". He further noted that essential services were still determined as they had been previously, in accordance with section 42, clause 74(6)(a), of the same Act, which explicitly included telephone, telegraph and broadcasting services, as well as any service in the civil capacity in respect of the Government of Swaziland, among the list of essential services. In conclusion, he said that it was urgent for the Government of Swaziland to take the necessary steps to comply with Conventions Nos. 87 and 98. In this context, he gave thanks to the employers in Swaziland for their willingness to help find a solution to the problem.

The Workers' member of the United States added that, ever since the SFTU had first demanded government action for the adoption of labour legislation that was in accordance with the Convention over two years ago, a climate of intimidation and violence had been directed towards its leaders which had made normal trade union activities impossible. SFTU leaders had been repeatedly arrested, interrogated, threatened and denied legal representation. They continued to be subjected to systematic repression because of their trade union work. The right to strike was flagrantly denied and the extent of the interference by the Government showed that its intention was to break up the independent and democratic trade union movement.

The Workers' member of Zimbabwe joined with previous speakers in condemning the violations of trade union and human rights by the Government of Swaziland. Following the inclusion in the 1994 Swaziland delegation to the Conference of a Workers' delegate from a minority federation, which had been challenged in the Credentials Committee, the Government of Swaziland had still not established which federation was most representative. He informed the Committee that the Secretary-General of the SFTU, who was present in the room but did not have the right to speak, had endangered his safety in defence of workers' rights in his own country. He had been declared a non-citizen of Swaziland and, together with other trade union leaders, had been subjected to serious harassment and intimidation. It was quite clear in this context that the information contained in the report of the Committee of Experts had been overtaken by events. The draft legislation referred to had been shelved and a more restrictive text had been adopted. The Government of Swaziland was therefore in even greater violation of Convention No. 87. The workers of the region called upon the Committee to send the correct signals to the Government of Swaziland by including a special paragraph on the matter in its conclusions.

The Workers' member of the United Kingdom expressed grave concern at a case which struck at the very heart of Convention No. 87. The Government of Swaziland had demonstrated flagrant disregard for the ILO's Conventions on freedom of association and its supervisory procedures. The Government was saying one thing to the Committee of Experts, while doing entirely different things in the country. Time and again the Committee on Freedom of Association had stated that freedom of association could only be exercised under conditions in which basic human rights, and particularly those relating to human life and personal safety, were fully respected and guaranteed. She focused on the climate of fear, violence and intimidation that reigned in Swaziland, and particularly the case of the SFTU Secretary-General. His car had been stopped in the late evening by hooded kidnappers armed with automatic rifles. His clothes, personal papers and SFTU documents had been taken and he had been left in his car boot abandoned in the middle of a road on a blind corner. His papers had later been found in the possession of the police. When the trade union movement had called for an independent inquiry into the incident, the Government had refused. She urged the Committee to call on the Government in the strongest terms to stop the violence and intimidation used against trade unionists and their families. It should amend the national legislation to bring it into line with ILO Conventions and take action on the demands identified in tripartite discussions as being possible to implement immediately. The evidence provided by the various Workers' members illustrated the depth of their feeling with regard to the deplorable situation in Swaziland.

The Workers' member of Germany joined with previous speakers in emphasizing the very serious nature of the case. With reference to the comments of the Employers' members concerning the right to strike and restrictions on that right in essential services, he emphasized that for reasons of legal security and certainty of interpretation it was necessary to interpret Article 3 of the Convention in accordance with the traditional interpretation that the Employers had hitherto supported in the Committee of Freedom of Association. Under this interpretation, neither postal services, radio services or education services were considered to be essential, and employees working in those sectors therefore should be accorded the right to strike. He therefore urged the Government of Swaziland to comply with the provisions of this basic human rights Convention.

The Government representative, in reply to the above speakers, stood by the comments that he had made previously with regard to the Committee of Experts' observation. In reply to a comment by the Employers' members, he informed the Committee that the restriction on meetings applied to purely political meetings. In relation to the new issues raised by other speakers, he stated that there should be a proper procedure for dealing with such matters so that his country could have been informed that they were going to be brought up in the Committee. He considered that the best manner of dealing with the matter was to establish an inquiry to go to Swaziland and investigate all the allegations that had been made. He considered that it would not be fruitful to react to all of the above comments at this stage. In this context, he added that some of the previous speakers had already been invited to investigate the situation in Swaziland, but had failed to make the journey, despite their proximity.

The Workers' members considered that there had been few cases in which the comments of the Committee of Experts had been so fully documented, or the allegations of the Workers' members so compelling. They observed that the view of the Employers' members concerning the issue of the right to strike in essential services differed from that of the Governing Body, which was the most authoritative body in that respect. With regard to the concluding remarks by the Government representative, they expressed understanding of the reluctance of workers' representatives to visit Swaziland in view of some of the events that had occurred in that country. They considered that it would be appropriate to view the Government representative's comments as an invitation for a mission by the ILO to look into the circumstances of the case. Finally, the Workers' members reminded the Committee that the Secretary-General of the SFTU was attending its meeting at considerable personal risk. They therefore called upon the Committee to reaffirm the findings of the Committee of Experts in the clearest and most compelling terms.

The Employers' members noted that the Committee of Experts' observation had played a somewhat subordinate role in the discussion of the case by the Conference Committee. This tended to refute the suggestion that the Conference Committee blindly followed the comments of the Committee of Experts. Turning to the status of the Committee of Experts, the Employers' members noted that it produced opinions and views, rather than legal interpretations. The latter were only produced by the International Court of Justice when a case was referred to it under article 37 of the ILO Constitution. The terms of reference of the Committee of Experts, as conferred upon it in 1926 by the Eighth Session of the International Labour Conference, were to advise the Conference as to the facts of cases. This meant that the Conference Committee had the right to determine its own attitude and to recommend the appropriate action to be taken. The 1926 Conference had also stated that the Committee of Experts was not competent to give interpretations of the provisions of the Conventions, nor to decide in favour of one interpretation rather than another. The Employers' members believed that it was important to recall these terms of reference every few years to prevent any misunderstandings. With reference to the right to strike, the Employers' members recalled the references made by the International Labour Conference to the subject in 1948 and 1949. They noted that requests to include the right to strike in a Convention had always been rejected. It was not therefore possible to refer to any case law of the Committee of Experts with regard to the right to strike.

The Committee took note of the statement of the Government representative and the discussion that followed. It observed that the Committee of Experts had noted serious divergencies between the current legislation and certain fundamental provisions of Articles 2 and 3 of the Convention. The Committee noted that a Labour Relations Act had been adopted by Parliament. The Committee requested the Government to transmit the above text to the Committee of Experts so that it could be examined. The Committee expressed the strong hope that this text, possibly including amendments based on any comments that the Committee of Experts might make, would bring an end in the near future to the difficulties experienced in the application of the Convention. In this respect, the Committee encouraged the Government to engage in tripartite discussions which should make it possible to lift the obstacles currently placed in the way of the free operation of trade union organizations. The Committee envisaged resuming the discussion at its next session in order to examine the extent to which the Government was able to indicate decisive progress in the application of the Convention in both law and practice. Finally, the Committee noted the invitation made by the Government representative for a mission to visit the country.

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

Previous comment

The Committee recalls that it previously trusted that the holistic review of the Industrial Relations Act (IRA) would involve a tripartite discussion on the registration of trade unions under section 32 and include the issue of resort to replacement labour during the course of lawful strike action. The Committee notes the Government’s indication that the holistic review took place and led to the drafting of an Industrial Relations (Amendment) Bill, 2022, which was accepted by the Labour Advisory Board (LAB) in October 2022. The Committee notes that the Bill was submitted to the Office for technical comments and the Government intends to finalize the negotiations on the Bill and submit it to Parliament upon receipt of the technical comments. The Committee notes in particular, that both issues appear to be addressed by the Bill. The Committee requests the Government to provide information on any developments in this regard and a copy of the legislation, once adopted.

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

Previous comments

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), all denouncing the deteriorating state of trade-union rights and the excessive violence of the police forces against gatherings and marches organized by trade unions, the harassment and death threats against union leaders, and the murder of Mr Thulani Maseko, a human rights and trade union rights defender. The Committee notes the Government’s reply to these observations, as well as to observations received in 2019 from TUCOSWA providing information on the report of the Committee of investigation set up to hear the cases and make recommendations. The matters raised in the above communications are addressed in this comment.

Civil liberties and trade union rights. Anti-union repression. The Committee notes with deep concern the serious allegations from the ITUC and ITF regarding the persecution and murders of trade unionists and the excessive violence against strikers that increased in 2022 and 2023, with allegedly more than 80 people reported to have lost their lives because of police crackdown on protests that demanded democracy and wage increases. In its reply, the Government refers to the situation in the country since June 2021 with an outbreak of violence, looting, attacks on public and private property and ruthless killings of public officers and civilians in a gross breach of public peace and security. According to the Government, these unprecedented riots, looting and violence could be associated with political insurgencies and should not be associated with the exercise of rights under the Convention. Investigations into these acts are still ongoing to identify and punish the perpetrators. The ITUC and ITF further allege that Mr Thulani Maseko, a human and trade union rights lawyer was brutally shot on 23 January 2023 at his home in Manzini. To date, no arrest in connection to this murder has been made. In its reply, the Government indicates that the death of Mr Maseko was a loss for the country at large, however political opportunists have saturated social media with stories about the motive and alleged perpetrators of this assassination. As regards the allegations that the police and security forces intervened violently during protest actions organized by the Swaziland Transport, Communication and Allied Workers’ Union (SWATCAWU) (October 2021 and November 2022) and during a march of public sector workers demanding a wage increase (October 2021) and causing serious casualties among workers, the Government states that the protest October 2021 was by no means peaceful. In the capital city of Mbabane, a large group of protesters was demanding regime change and causing structural damage, looting and burning tyres on the highway. The situation was out of control and the police had to mount several check points and roadblocks at strategic places. The police applied minimum force to disperse the protestors and restore order, warning shots were fired in the air and tear gas was discharged against the protestors who had turned violent towards the police. During the commotion, a person was shot and died on arrival at hospital. In November 2022, after a court ruling against five public transport workers charged with assault, a group of workers who had gone to protest around the court premises shifted to the surrounding areas burning tyres and looting shops. The police had to disperse the crowd in an effort to restore order. Finally, as regards allegations that the personal assets of leaders of the Amalgamated Trade Union of Swaziland (ATUSWA) were ravaged in April 2022, a week after a protest action in the textile and garment industry, the Government states that there were numerous burnings of homes and buildings belonging to political figures, influential people, police officers and targeted individuals. The police are still investigating the incidents. The Committee recalls that the rights of workers’ and employers’ organizations can only develop in a climate free of violence, threats and pressure, and that it is for the Government to guarantee that these rights can be exercised normally. It further recalls that Article 8 of the Convention provides that workers and their organizations, like other persons or organized collectivities, shall respect the law of the land and that the law of the land shall not be such as to impair, nor shall it be so applied so as to impair, the guarantees provided for in this Convention. The authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control, and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace. Where investigations have concluded abuse, the absence of convictions against those guilty of crimes against trade union officers and members creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights. The Committee requests the Government to provide copies of the court decisions against the five public transport workers charged with assault, as well as information on the outcome of the police investigations mentioned above.

Harassment in the education sector. The Committee notes with deep concern the serious allegations from the ITUC, ITF, EI and TUCOSWA of violations of trade union rights in the education sector, in particular against the Swaziland National Association of Teachers (SNAT): (i) serious acts of anti-union discrimination against and harassment of Mr Mbongwa Dlamini, President of SNAT, since his election at the head of the teachers’ union. Through the Teaching Service Commission (TSC), the authorities harassed Mr Dlamini with misconduct charges, leading to decisions of suspension of pay and transfer. Despite a decision of the Industrial Court dated May 2023 in favour of Mr Dlamini, who has not been paid since September 2022, the authorities have still failed to pay him and have appealed the court decision. Mr Dlamini has now been dismissed from his duties by the Teaching Service Commission as he was expected to go to work without being remunerated. EI denounces the dismissal of the President of SNAT for merely bearing his mandate as representing teachers; (ii) in February 2023, Mr Dlamini went into hiding after receiving multiple death threats while he was outside of Eswatini. This decision was made after the assassination of the human rights lawyer, Thulani Maseko. The SNAT executive determined that it was necessary for the union President to relocate to a safe place outside the country; (iii) the TSC is now allegedly threatening the Secretary General of SNAT, Mr Lot Mduduzi Vilakati, for defending the President and SNAT members; (iv) the authorities refused in 2023 to implement the 3 per cent increase in dues for SNAT members and also refused to include new members recruited by SNAT. According to EI, this is a move by the Government to reduce the membership of SNAT to less than 50 per cent so that they can deregister the union. New members are not put in the system and members are removed from the system by the Government without the members’ knowledge; (v) the Government continues to initiate and encourage union-bashing as seen in the Government sponsored splinter groups, casualization of teachers, print and electronic media threats against SNAT, suspension of union officials, implementation of the “no work no pay” policy, use of threats, spying, and vilification of SNAT leaders and members. The consequences of the Government’s deliberate actions to weaken SNAT, lead to increased intimidation, a decrease in SNAT membership, an increase in conflicts and grievances in schools, incapacitated leadership leading to a fear of assuming union positions, and low turnout in union activities; (vi) violent repression by the police against protests and a march organized by SNAT between 2018 and 2019; (vii) EI is alarmed by the threats made against SNAT and its members, including the declaration of SNAT as a terrorist entity by people holding high positions in Eswatini; and (viii) Ms Xolile Mnisi Sacolo, Chairperson of the Limkokwing Branch of the National Workers Union of Higher Institutions (NAWUSHI), appealed against a predetermined disciplinary action targeting her as a union official was wrongfully dismissed by a court decision in August 2023 on claims that she was causing delays.

In its reply, the Government denies the allegations that Mr Mbongwa Dlamini, President of SNAT, was forced into exile following threats by security forces and asserts that he is actively participating and engaging in union activities. Furthermore, the Government states that there is no criminal matter pending against Mr Dlamini, nor is there an arrest warrant issued or pending. Additionally, the judicial appeal against the Industrial Court decision of May 2023 in favour of Mr Dlamini is still pending before the High Court. Regarding its alleged attempt to stop collection and remittance of the union dues, the Government declares the allegations as fallacy and untrue. The Government and SNAT have a clear and standing Recognition Agreement that dates back many years, which it fully respects.

With regard to the allegations of threats against the leadership of SNAT, the Committee firmly recalls that acts of intimidation and physical violence against trade unionists constitute a grave violation of freedom of association and the failure to protect against such acts amounts to de facto impunity, which can only reinforce a climate of fear and uncertainty highly detrimental to the exercise of trade union rights. The Committee urges the Government to provide its comments to the remaining allegations, to indicate any measures taken to enable SNAT to develop its activities in the education sector without threats against its leadership or interference, on the present status of Mr Mbongwa Dlamini who was allegedly harassed and threatened because of his union mandate, and on the outcome of the judicial appeal against the decision of May 2023 of the Industrial Court in favour of Mr Dlamini and any follow-up to it.

Article 3 of the Convention. Ban on trade union gatherings by administrative order. The Committee notes with concern the allegation from all of the above-mentioned trade unions that the rights of the freedom of assembly of workers’ organizations is considerably restricted as the laws regulating gatherings are suspended by an administrative order of October 2021 of the Ministry of Housing and Urban Development, which extended the ban on demonstrations, marches and petition deliveries in all urban areas and towns. The said ministerial order revoked the powers of Municipal Councils to entertain gathering notices. The situation is akin to an undeclared state of emergency as the police can only allow up to three people to march. Despite a court ruling lifting the ban in February 2022, the Government allegedly continues to prohibit and cracks down on gatherings and protests. This matter remained unresolved at the mediation. In the midst of a voluntary conciliation meeting to resolve the issue in July 2023, the Government issued a public announcement, purporting a relaxation of the ban, thereby allowing the Municipal Councils, as of 18 July 2023, to issue permits for gatherings not exceeding ten people. TUCOSWA recalled however that the Public Order Act, 2017, permits the gathering of not more than 50 people without notice requirements. The trade unions regretted that trade union gatherings remain banned in Eswatini.

In this regard, the Committee recalls that trade unions should be able to hold meetings, in accordance with the principle embodied in Article 3 of the Convention, whereby organizations have the right to freely organize their activities without interference from the authorities. The authorities should refrain from any interference which would restrict freedom of assembly or impede the lawful exercise thereof, provided that the exercise of these rights does not cause a serious and imminent threat to public order (see the 2012 General Survey on the fundamental Conventions, paragraph 115). The Committee also considers that trade unions must conform to the general provisions applicable to all public meetings and must respect the reasonable limits which may be fixed by the authorities to avoid disturbances in public places. Consequently, the Committee urges the Government to take all necessary measures to ensure in law and in practice that representative organizations fully enjoy the right to hold public meetings enshrined in the Convention, and therefore to repeal any text whose application would considerably limit the possibilities of representative organizations to hold large-scale public meetings to defend the occupational interests of their members.

Police violence against industrial actions. Findings of the Investigation Committee. The Committee previously requested the Government to provide information on the outcomes of the examination by the Independent Investigation Committee of the complaints made in September 2018 and September 2019 by TUCOSWA and the ITUC on the alleged violence against peaceful industrial actions. The Committee notes that the Investigation Committee recommended, inter alia, the following: (i) training of lower ranked police officers, the union leadership and Marshalls, and the public at large in trade union rights and the handling of industrial actions; (ii) both police and union leadership should commit to upholding the law during industrial actions and develop a culture of cooperation; (iii) video recording of industrial actions should be considered for review purpose; and (iv) an independent monitor (individual or organization) should be involved in the preparation during the industrial action.

The Committee notes that in parallel to this investigation process, the Government and TUCOSWA negotiated and agreed in May 2023 to resort to a national voluntary conciliation on matters giving rise to a complaint lodged before the Committee on Freedom of Association (Case No. 3425 presented by TUCOSWA in March 2022), and those addressed in this comment. The Committee observes, from the report of the conciliation issued in September 2023, that the parties agreed to avail themselves of the technical assistance of the Office regarding the regulatory and practical issues concerning the handling of industrial action and public gatherings organized by trade unions.

The Committee recalls that allegations of police violence while handling trade union demonstrations have been recurrent in the past years and that the Government has benefited from the technical assistance of the Office for the adoption and the dissemination of the Code of Good Practice for Industrial and Protest Actions (Legal Notice No. 202 of 2015), the Code of Good Practice on Gatherings (Legal Notice No. 201 of 2017) and the Public Order Act of 2017, as a capacity-building strategy of the various stakeholders on how industrial and protest actions can be well managed in the country, in order to minimize unwarranted confrontations between protestors and members of the law enforcement agencies and Municipal Councils. In its 2019 report, the Government reported plans for the sensitization of members of Parliament, Cabinet Ministers and executive leaders of trade unions in this regard. The Committee acknowledges the tangible measures taken by the Government in 2022 and 2023 to investigate the matters previously raised by the unions and to seek corrective measures. Taking note of the recommendations of both the Investigation Committee and the national voluntary conciliation, the Committee expects that the Government will take measures without delay and in consultation with the social partners for the dissemination of codes of good practices so that trade union rights to engage in protest and industrial action in defence of occupational interests are indeed protected, both in law and practice. The Committee hopes that the Government will avail itself of the technical assistance of the Office in this regard. The Committee requests the Government to report fully on progress made in this regard and once again requests that the Government also provides information, where appropriate, on violations identified and penalties imposed pursuant to section 49(1) of the Police Service Act, No.22 of 2018 (disciplinary action against abuse of power by members of the police).

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

[The Government is asked to reply in full to the present comments in 2025.]

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

Article 2 of the Convention. Right of workers and employers to establish organizations without previous authorization. In its previous comments, the Committee had requested the Government to bring the issue of the amendment of section 32 of the Industrial Relations Act (IRA) to the relevant national tripartite structure for discussion. The Government reported that the Labour Advisory Board (LAB) had examined the issue and concluded that section 32 ought to be amended simultaneously with sections 27 and 28 of the law. However, the LAB decided to stay the amendment of section 32 in view of the fact that other provisions in the law were outdated and that it was advisable to conduct a comprehensive and holistic review of the whole legislation. In its latest communication dated 30 November 2020, the Government informs that the LAB has approved the appointment of the Conciliation, mediation and Arbitration Commission (CMAC) to lead the holistical review of the IRA for a period of three months and to submit a draft new legislation. The Committee requests the Government to inform on any developments in this regard.

Article 3. Right to strike in practice. The Committee previously noted the Government’s indication that the Industrial Court of Appeal upheld in a decision the principle that an employer is allowed to use replacement labour during the course of a lawful strike action (Case No. 12 of 2017). The Government specified that it held a different view and had issued a public statement, before the Court decision, to the effect that employers are not allowed to resort to replacement labour during the course of a lawful strike action, as such practice could negate the very purpose of a strike action as a collective bargaining tool available to workers. The Government indicated its intention to include this subject matter in the planned holistic review of the Industrial Relations Act. The Committee notes the observations from the TUCOSWA that since its request of 2018, the Government has made no efforts to commence the legislative change necessary to curb the consequences of the judgment of the Industrial Court of Appeal. The TUCOSWA concludes that there is no political will to embark on the holistic review of the Industrial Relations Act so as to explicitly provide for the protection of the right to strike. The TUCOSWA submits that since the pronouncement of the judgment, strike action has been significantly reduced if not eliminated, as each time there is a threat of a strike, the employers simply brandish the judgment and make workers aware that if they proceed with the strike they can be replaced during the industrial action. The Committee recalls its view that provisions allowing employers to dismiss strikers or replace them temporarily or for an indeterminate period are a serious impediment to the exercise of the right to strike, particularly where striking workers are not able in law to return to their employment at the end of the dispute (see the 2012 General Survey on the fundamental Conventions, paragraph 152). The legislation should provide for genuine protection in this respect. The Committee once again requests the Government to provide information on any measures taken or envisaged in this regard, including to address the concerns raised by the TUCOSWA, trusting that the matter will be included in the holistic review of the Industrial Relations Act by the CMAC or as a separate legislative measure.

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

The Committee notes the observations received on 1 September 2019 from the International Trade Union Confederation (ITUC) alleging violence by the security forces against peaceful protest actions between August and October 2018 and in September and October 2019, as well as the Government’s reply thereon, both of which are addressed in this comment.

The Committee notes the observations of the Trade Union Congress of Swaziland (TUCOSWA) denouncing similar acts of police violence and disruption against peaceful demonstrations. TUCOSWA further alleges other violations of the Convention, including: (i) the refusal of a number of companies to recognise the Amalgamated Trade Union of Swaziland (ATUSWA) despite various Arbitration Awards in its favour, thus impairing its ability to develop programmes and activities; (ii) the unilateral declaration by the Police Commissioner of an industrial action as unlawful in September 2018; (iii) the refusal to allow a member of the Swaziland Nurses Association to represent the union during negotiations with the Government on the basis that he is no longer employed, thus violating the right of workers to elect their representatives in full freedom; and (iv) the intimidation and victimization of leaders of the Swaziland National Association of teachers (SNAT) and the Swaziland Electricity Supply Maintenance and Allied Workers Union (SESMAWU). The Committee requests the Government to provide its comments thereon.

Civil liberties and trade union rights. Police violence against peaceful demonstrations. The Committee notes that the ITUC alleges the following incidents during protest actions: (i) in September 2018, members of the ATUSWA were arrested and beaten up by the police during protests in five garment and textile factories involving more than 10,000 workers. According to the ITUC, the police resorted, without provocation, to disperse the workers using tear gas and beating them up; (ii) in October 2018, armed police invaded the Hlatikhulu Government Hospital during a lawful and peaceful protest by nurses. The strike came after a series of protests and rallies violently disrupted by the police; (iii) in September 2019, during a peaceful demonstration of civil servants organized by the SNAT, the National Association of Public Service and Allied Workers Union (NAPSAW) and the Swaziland National Government Accounting Personnel (SNAGAP), members of the police fired teargas, rubber bullets and water cannons at protesters during a march to deliver petitions to the Eswatini Royal Police Services Headquarters, the Ministry of Public Service and the Ministry of Education and Training. According to the ITUC, police intervened and began assaulting the protestors when the crowd diverged from their authorized protest route; and (iv) in October 2019, during a protest march of 8,000 workers in Manzini, the police fired live ammunition into groups of protesters injuring ten workers, including the Secretary General for NAPSAWU’s Manzini Branch (Dumisani Nkuna). According to the ITUC, further violence erupted as the protestors reached the Manzini Regional Education Office and at least 30 workers were injured. The Government resorted to the National Industrial Relations Court to have the strike declared illegal under reasons of posing “threats to national interest.” The Court handed down an interim order halting the strike action.

The Committee notes that, in reply to the observations of the ITUC, the Government informs of the setting up, in September 2019, of an Investigation Committee composed of four members, led by a senior judicial officer. The Investigation Committee was appointed to give effect to the recommendation of the Committee on Freedom of Association to initiate an independent investigation to determine the justification of the action of the police denounced by the ITUC (see 388th Report, March 2019, Case No. 2949). Otherwise, the Government recalls that the statutory Labour Advisory Board (LAB), being a tripartite advisory structure established in terms of Part III of the Industrial Relations Act, had initiated its own investigations with regard to the industrial action matters of September 2018 denounced by the ITUC. The LAB held meetings in November and December 2018 to listen to submissions from affected stakeholders including TUCOSWA, ATUSWA and SNAT, affected employers and the Police, in an effort to obtain and examine the detailed facts surrounding the conduct of these industrial actions in terms of compliance with the established legislative procedures. While the LAB was scheduled to issue findings in early 2019, this was overtaken by the decision of the Government to appoint the Independent Investigation Committee. Legal Notice No.183 of 2019 (Government Gazette of 12th September 2019) listed the functions of the Independent Investigation Committee which include: (i) determining compliance of all the industrial actions mentioned by the ITUC and TUCOSWA in their letter of complaint of September 2018, as well as the extent and justification for the involvement of the security forces in the industrial actions; (ii) investigating the alleged conduct by the police invading Hlathikhulu Government Hospital; (iii) interviewing witnesses, conducting site inspections and examining any documentary, electronic and other forms of evidence to prove or dispel elements of violence or intimidation incidental to the industrial actions mentioned by the ITUC in its letters of September 2018 and September 2019; and (iv) making findings on the conduct of the industrial actions and make recommendations on any gaps regarding the law which impact on the regulation and conduct of industrial action. On 28 September 2019, the Independent Investigation Committee extended invitation to all interested persons and stakeholders to indicate their interest to make submission. The Government states that the swift establishment of the Investigation Committee demonstrates its engagement to promote the application of the Convention.

The Government further denies the ITUC allegation that police brutality against striking workers is still prevalent and underlines that the industrial actions which took place within the period August to October 2018 are not a reflection of the general behaviour of the police against industrial actions in the country – if it is assumed that these industrial actions were characterised by police brutality. The Government indicates that during 2018 over ten other industrial actions organized by various trade unions all over the country weren’t disrupted by acts of violence or brutality from the police.

The Committee must express its concern over the serious allegations of recurrent violent attacks and disruption by security forces against peaceful trade union gatherings, including alleged violent attacks occurring after the establishment of the new Investigating Committee by the Government to improve the handling of trade union gatherings in public places. In this respect, the Committee recalls that the exercise of trade union rights is incompatible with violence or threats of any kind. It is therefore important that all allegations of violence against workers who are organizing or otherwise defending workers’ interests be thoroughly investigated with a view to establishing the facts, determining violations and responsibilities, punishing the perpetrators and preventing the recurrence of such acts. The Committee welcomes the decision of the Government to set up the Independent Investigation Committee and to extend its mandate to cover the industrial actions referred to by the ITUC in its communications of September 2019, and the police firing of live ammunition into groups of protesters in October 2019, along with those listed in the ITUC communication of September 2018. The Committee notes that the Investigation Committee was given an extended period until March 2021 to submit a report with findings and the Government’s intention to transmit the outcome of the investigations. The Committee requests the Government to provide information with regard to the outcome of the Independent Investigation Committee, as well as any measures taken by the Government as a follow-up. With reference to its previous comments, the Committee also requests the Government to provide the results of legal and mediation proceedings in cases where the unions had subsequently resorted to the Conciliation Mediation and Arbitration Commission (CMAC) and the Industrial Court.

The Government informs of the adoption of the Police Service Act (No. 22 of 2018), noting that it contains enhanced provisions in line with the promotion of the exercise of the right to freedom of association and includes provisions so that the abuse of power by members of the police may lead to disciplinary action (Section 49(1)(I)). The Government stresses the relevance of having included such provisions in the law regulating the discipline of police officers, so as to ensure the highest exercise of restraint by police officers in their line of duty for the maintenance of public safety and public order during industrial and protest actions.

Furthermore, the Government reports on the technical assistance of the Office in 2019 for the dissemination programme of the Code of Good Practice for Industrial and Protest Actions (Legal Notice No. 202 of 2015), the Code of Good Practice on Gatherings (Legal Notice No. 201 of 2017) and the Public Order Act of 2017, as a capacity-building strategy of the various stakeholders on how industrial and protest actions can be well managed in the country, in order to minimise unwarranted confrontations between protestors and members of the law enforcement agencies and Municipal Councils. Special sessions are planned for members of Parliament, Cabinet Ministers and executive leaders of trade unions. The Committee reiterates its hope that this dynamic will contribute to a conducive climate free from violence, pressure and threats of any kind on the occasion of peaceful demonstrations by workers. Noting the Government’s intention to report on the impact of the dissemination programme of the Codes of good practices, the Committee requests the Government to continue to provide information on measures taken to ensure that trade union rights to engage in protest and industrial action in defence of occupational interests are indeed protected, both in law and practice, including information on violations identified and penalties imposed pursuant to section 49(1) of the Police Service Act, No.22 of 2018.

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

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

Article 2 of the Convention. Right of workers and employers to establish organizations without previous authorization. In its previous comments, the Committee requested the Government to bring the issue of the amendment of section 32 of the Industrial Relations Act to the relevant national tripartite structure for discussion. The Committee notes the Government’s indication that the Labour Advisory Board (LAB) had examined the issue and concluded that section 32 ought to be amended simultaneously with sections 27 and 28 of the law. However the LAB decided to stay the amendment of section 32 in view of the fact that other provisions in the law were outdated and that it was advisable to conduct a comprehensive and holistic review of the whole legislation. The Committee requests the Government to provide information on any developments in this regard.

Practical application. The Committee notes the Government’s indication that the Industrial Court of Appeal upheld in a recent decision the principle that an employer is allowed to use replacement labour during the course of a lawful strike action (Case No. 12 of 2017). The Government specifies that it is holding a different view and had actually issued a public statement, before the Court decision, to the effect that employers are not allowed to resort to replacement labour during the course of a lawful strike action as such practice could negate the very purpose of a strike action as a collective bargaining tool available to workers. The Government states that it does not intend to interfere with the Industrial Court of Appeal decision, however it intends to include this subject matter in the planned holistic review of the Industrial Relations Act. The Committee requests the Government to provide information on any development in this regard and recalls its view that provisions allowing employers to dismiss strikers or replace them temporarily or for an indeterminate period are a serious impediment to the exercise of the right to strike, particularly where striking workers are not able in law to return to their employment at the end of the dispute. The legislation should provide for genuine protection in this respect (see General Survey of 2012 on the fundamental Conventions, paragraph 152).

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

The Committee notes the observations received on 1 September 2016 and 1 September 2018 from the International Trade Union Confederation (ITUC) concerning the application of the Convention in practice. The ITUC denounces: (i) police violence and disruption against peaceful demonstrations in August 2017, July and August 2018, and the arrest and detention of union leaders after these demonstrations; (ii) dismissal of union leaders for their participation in a strike action in the sugar industry; and the refusal of two companies in the textile industry to recognize company unions affiliated to the Amalgamated Trade Unions of Swaziland (ATUSWA). The Committee is of the view that the exercise of trade union rights is incompatible with violence or threats of any kind. It is therefore important that all allegations of violence against workers who are organizing or otherwise defending workers’ interests be thoroughly investigated with a view to establishing the facts, determining violations and responsibilities, punishing the perpetrators and preventing the recurrence of such acts. In this regard, the Committee duly notes the detailed comments provided by the Government in reply to the allegations explaining the particular circumstances of the intervention of the security forces in each instance and indicating that in some cases the unions had subsequently resorted to the Conciliation Mediation and Arbitration Commission (CEMAC) and the Industrial Court. The Committee also notes the Government’s statement that relations between the Government and the labour movement have improved in the past two years courtesy of the promulgation of the Code of Good practice for managing industrial and protest actions (2015), the Code of Practice on gatherings (2017) and the Public Order Act (2017), respectively, and the ongoing process of disseminating these codes through various workshops among key stakeholders, including the social partners, the police, the correctional services staff, municipal councils, etc., with the technical assistance of the Office. The Committee requests the Government to provide follow-up information with regard to the outcome of the legal and mediation proceedings mentioned and trusts that the new dynamic described by the Government will contribute to a conducive climate free from violence, pressure and threats of any kind on the occasion of peaceful demonstrations by workers. It requests the Government to continue to provide detailed information on measures taken in this regard.

Articles 2, 3 and 5 of the Convention. Registration of workers’ and employers’ federations. In its previous comments, the Committee had requested the Government to indicate the steps taken to register ATUSWA following the adoption by Parliament of the Industrial Relations (Amendment) Act, 2014. The Committee notes with interest that the registration of ATUSWA was finalized in May 2016 by the issuance of the certificate of registration.

Legislative issues. The Committee recalls that for many years it has been requesting the Government to amend a number of legal texts which gave rise to practices which unduly restricted trade union demonstrations and other trade union activities, contrary to the Convention. It also recalls that since 2011 the Government has benefited from the technical assistance of the Office to review the provisions of these legal texts and adopt the necessary amending provisions with a view to ensuring that the legislation is used in full conformity with the Convention. The Committee takes note with satisfaction that the Government engaged in meaningful consultation with the social partners leading to the enactment of the following texts: (i) the Suppression of Terrorism (Amendment) Act (Act No. 11 of 2017 published in the Government Gazette of 8 August 2017); (ii) the Public Order Act (Act No. 12 of 2017 published in the Government Gazette of 8 August 2017); (iii) The Correctional Services Act (Act No. 13 of 2017 published in the Government Gazette of 31 October 2017); and (iv) The Public Service Act (No. 5 of 2018 published in the Government Gazette of 22 February 2018). In particular, the Committee notes with satisfaction that the Correctional Services Act recognizes the right to organize for the members of the Correctional Services and thus to prison staff (section 112 of the Act), and provides that the process of registration, monitoring and regulation of their staff association shall be governed by the relevant provisions of the Industrial Relations Act (section 113). More generally, the Committee acknowledges this significant progress and trusts that the Government will pursue its efforts towards ensuring that these new legal texts are implemented with a view to guarantee the exercise of trade union rights in full conformity with the principles enshrined in the Convention.

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

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

The Committee notes the observations received on 1 September 2015 from the International Trade Union Confederation (ITUC) concerning the issues being examined by the Committee. The Committee also notes the joint communication received on 1 September 2015 from the International Organisation of Employers (IOE) and the Federation of Swaziland Employers and Chamber of Commerce (FSE&CC) on recent developments in the country concerning issues discussed by the Committee on the Application of Standards of the International Labour Conference (hereafter the Conference Committee) in June 2015.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 104th Session, June 2015)

The Committee notes the discussion which took place at the Conference Committee in June 2015. The Committee observes that the Conference Committee took note of the information provided by the Government relating to the amendment made to the Industrial Relations Act (IRA) by virtue of which the Trade Union Congress of Swaziland (TUCOSWA), the FSE&CC, and the Federation of Swaziland Business Community (FSBC) are now registered. The Conference Committee also referred to the commitment by the Government to fully ensure the full operationalization of all the tripartite structures in the country by inviting the federations to nominate their members on the various statutory bodies in order to assist in maintaining a healthy social dialogue in the country. Concerning developments in relation to pending issues, the Conference Committee, in its conclusions, urged the Government, among other things: (i) to release unconditionally Mr Thulani Maseko, TUCOSWA’s lawyer, who was serving a jail term; (ii) to ensure that all workers’ and employers’ organizations are fully assured of their freedom of association rights in relation to the registration issue, in particular to register the Amalgamated Trade Union of Swaziland (ATUSWA) without delay; (iii) to amend section 32 of the IRA to eliminate the discretion of the Commissioner of Labour to register trade unions; (iv) to amend the 1963 Public Order Act following the work of an ILO consultant as well as the Suppression of Terrorism Act, in consultation with the social partners, to bring them into compliance with the Convention; (v) to adopt the Code of Good Practice for protest and industrial action; and (vi) to address issues in relation to the Public Services Bill and the Correctional Services Bill in consultation with the social partners.

The Committee notes that in October 2015 the Government provided updated information in relation to the issues under consideration by the Conference Committee in June 2015.

Articles 2, 3 and 5 of the Convention. Registration of workers’ and employers’ federations. In its previous comments, the Committee had noted the adoption by 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, and had urged the Government to register and recognize the legal personality of TUCOSWA, the FSE&CC and the FSBC. The Committee notes with satisfaction that TUCOSWA, the FSE&CC and the FSBC were registered in May 2015, and the indication from the Government that they are now represented in all tripartite structures that have been established, including the Labour Advisory Board, the National Steering Committee on Social Dialogue for Swaziland, the Swaziland National Provident Fund Board, the Training and Localization Committee and Wages Councils. The Committee further notes from the Government that another federation, the Federation of Swaziland Trade Unions (FESWATU), had been registered in June 2015. The Committee urges the Government to indicate the steps taken to register ATUSWA as requested by the Conference Committee.

Furthermore, the Committee notes with satisfaction that TUCOSWA’s lawyer, Mr Thulani Maseko, was released unconditionally on 30 June 2015 by a decision of the Supreme Court.

Legislative issues. The Committee 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 approved by Cabinet and has been published in the Gazette as Legal Notice No. 16 of 2015 and is lying open for public comments before being tabled in Parliament for debate and promulgation. The Government adds that dialogue on the Bill is still ongoing on some issues.
• -The 1963 Public Order Act: The Committee recalls that it has been requesting the Government for many 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 in the framework of the Office’s technical assistance, a review of the Public Order Act commenced in September 2015 and that a draft bill will be presented shortly to the Government and the social partners.
• -The Correctional Services (Prison) Bill: In relation to the recognition of the right to organize for prison staff, the Committee notes that the Bill has been reviewed by the Ministry of Justice and Constitutional Affairs and submitted to Cabinet for approval, after which it will be published in the Gazette and shall be subject to public comments for 30 days before being tabled to Parliament for debate and promulgation.
• -The Code of Good Practice for protest and industrial action: The Committee notes that the Code has been approved by Cabinet and has been tabled before Parliament for 14 days in each chamber. If it is not called for debate, it shall be deemed to have been approved and shall therefore come into force.

While welcoming the concrete steps taken by the Government throughout the year on these legislative and administrative matters, the Committee trusts that the Government will endeavour to promptly complete these reform processes to ensure full compliance with the provisions of the Convention, and will provide information on all progress made in this regard.

With regard to the amendment of section 32 of the IRA requested by the Conference Committee, the Committee takes note of the observations from the ITUC according to which the IRA, as amended in November 2014 by Parliament, did not reflect the tripartite consensus reached in the Labour Advisory Board with respect to section 32bis which vests the Commissioner of Labour with unrestricted discretion in deciding over the registration of a trade union. The Committee also notes the observations from the IOE and the FSE&CC indicating that this issue was never brought to tripartite discussion and requesting TUCOSWA to provide information on how the discretion of the Commissioner of Labour is contrary to good practice. The Committee trusts that this issue will be brought to the relevant national tripartite structure for discussion and requests the Government to indicate any developments in this regard.

Lastly, with regard to the conclusions of the Conference Committee in relation to the amendment to the Suppression of Terrorism Act, the Committee requests the Government to indicate any consultation with the social partners in this regard and its outcome.

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

Article 3 of the Convention. Right of employers’ and workers’ organizations to organize their activities and formulate their programmes. With regard to the determination of a minimum service in sanitary services, the Committee notes that the Government agreed with the social partners that sanitary services be removed altogether from the list of essential services as per the Industrial Relations Act (IRA).

The Committee further recalls that, for a number of years, it had reminded the Government that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action provided the initial strike they are supporting is itself lawful. While observing that the IRA does not address sympathy strikes and has not yet been amended in this respect, the Committee previously noted from the Government’s indication that the workers’ side had not yet submitted any proposal for amendment. The Committee requests the Government to provide information on any developments in this regard.

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

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

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.]

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 3 of the Convention. The Committee recalls that, for a number of years, it had reminded the Government that a general prohibition on sympathy strikes could lead to abuse and requested it to indicate whether, in practice, workers may engage in sympathy strikes without incurring sanctions. The Committee previously noted from the Government’s report that the workers’ side had not yet submitted any proposal to amend the Industrial Relations Act (IRA). Noting from the Government’s report that the Labour Advisory Board agreed in July 2013 to set up a subcommittee to review the whole Act and come up with proposals of amendments, the Committee hopes that this issue will be taken into account in the process and requests the Government to provide information on any development in this regard.

[The Government is asked to reply in detail to the present comments in 2014.]

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Comments from employers’ and workers’ organizations. The Committee notes the 2013 comments made by the International Organisation of Employers (IOE) and the International Trade Union Confederation (ITUC) concerning issues already under examination as well as allegations of continued restrictions of trade union activities in practice. The Committee takes note in particular of the ITUC’s denunciation of the refusal of the Government to register the Amalgamated Trade Union of Swaziland (ATUSWA) in September 2013, the shutdown by the police of a Global Inquiry Panel held in September 2013 and the brief detention of some of its participants. Noting the seriousness of these latest allegations, the Committee urges the Government to provide its observations thereon.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 102nd Session, June 2013)

The Committee notes the discussion which took place in the Conference Committee in June 2013. The Committee observes that the Conference Committee took note of the Government’s statement that all pending legislative issues would be attended to within the framework of the relevant tripartite institutions as a matter of urgency. Furthermore, the Conference Committee observed, in its conclusions, the grave issue concerning the revocation of the registration of the voluntarily unified Trade Union Congress of Swaziland (TUCOSWA) in April 2012, strongly urged the Government to immediately take the necessary steps to ensure that the social partners’ views were duly taken into account in the finalization of the Industrial Relations Amendment Bill, and expected that this action would enable all the social partners in the country to be recognized and registered under the law, in full conformity with the Convention. The Conference Committee also expected that the tripartite structures in the country would effectively function with the full participation of all social partners, including TUCOSWA, and that the Government would guarantee that these organizations could exercise their rights under the Convention and the Industrial Relations Act (IRA). Finally, the Conference Committee called on the Government to accept a high-level ILO fact-finding mission to assess the progress made on pending matters, including the steps taken to amend the IRA to enable federation registration and the actual registration of the TUCOSWA.

The present Committee also takes note of the latest conclusions and recommendations of the Committee on Freedom of Association concerning the revocation of the registration of the TUCOSWA (Case No. 2949) and, in particular, that the Committee on Freedom of Association urged the Government to ensure that the amendments to the IRA were adopted without delay so that federations of workers and employers could be registered and function in the country, and requested that, in the meantime, the TUCOSWA be able to effectively exercise all its trade union rights without interference or reprisal against its leaders, including the right to engage in protest action and peaceful demonstrations in defence of its members’ occupational interests.

The Committee takes due note of the information provided by the Government on progress achieved to follow up on the comments made by the Committee for many years. It notes in particular the Government’s indication that the tripartite structures in the country are functioning with the full participation of the federations of employers and workers (the Federation of Swazi Employers and Chamber of Commerce, the Federation of the Swazi Business Community and TUCOSWA). The Committee notes with regret the Government’s indication that the IRA amendment bill, approved by Cabinet and published as Bill No. 14 of 2013, could not be tabled to Parliament due to other pressing parliamentary issues (the Government had committed to table the Bill by the end of June 2013). The Committee further observes with deep regret that the TUCOSWA is still not registered and urges the Government to ensure that the necessary steps are taken for the registration without delay of the TUCOSWA and the other workers’ and employers’ federations affected.

Furthermore, while taking note of the information on the meetings held within the National Steering Committee on Social Dialogue and the Labour Advisory Board, the Committee firmly trusts that the Government will report in the near future on concrete progress made on the Committee’s long-standing requests concerning amendments and modifications to the following legal texts:

• – The Public Service Bill: The Committee notes that the bill is pending before the Labour Advisory Board.
• – The Industrial Relations Act (IRA): The Committee notes from the Government’s report that the Labour Advisory Board agreed in July 2013 to set up a subcommittee to review the whole Act and come up with proposed amendments taking into account the Committee’s previous recommendations concerning the civil and criminal liabilities of trade union leaders and the determination of a minimum service in sanitary services.
• – The 1973 Proclamation and its implementing regulations: In relation to the status of this Proclamation, the Committee notes that its previous recommendations have been discussed in June 2013 within the Steering Committee on Social Dialogue and are still part of its agenda.
• – 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 Act so as to ensure that it could not be used to repress lawful and peaceful strike action. The Committee notes the indication that the Attorney-General will review the Act and submit a progress report to the Steering Committee on Social Dialogue.
• – The Correctional Services (Prison) Bill: In relation to the recognition of the right to organize of prison staff, the Committee previously noted that the draft Correctional Services (Prison) Bill was circulated to the Labour Advisory Board in September 2012. The Committee notes that no information has been provided on the present status of the Bill.
• – The Code of good practice for protest and industrial action: The Committee notes that the technical assistance of the Office has been requested in June 2013 to finalize the Code.

Finally, noting with regret that the high-level ILO fact-finding mission requested by the Conference Committee was postponed until next year, the Committee firmly hopes that it will take place in the near future and that it will be able to assess tangible progress on the pending issues.

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

[The Government is asked to reply in detail to the present comments in 2014.]

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

Article 3 of the Convention. The Committee recalls that, for a number of years, it had reminded the Government that a general prohibition on sympathy strikes could lead to abuse and requested it to indicate whether, in practice, workers may engage in sympathy strikes without incurring sanctions. The Committee previously noted from the Government’s report that the matter would be considered by the Labour Advisory Board once a proposal was submitted by the workers’ federations. The Committee notes from the Government’s report that the workers’ side has not yet submitted any proposal to amend the Industrial Relations Act (IRA). The Committee requests the Government to provide information on any development in this regard.

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

Comments from employers’ and workers’ organizations. The Committee notes the comments made by the International Organisation of Employers (IOE) on the right to strike, in a communication dated 29 August 2012, which are dealt with in the General Report of the Committee.

The Committee notes the communication dated 31 July 2012 from the International Trade Union Confederation (ITUC) concerning the issues under examination, as well as allegations of continued repression of trade union activities in practice throughout the period under review, and reports on police brutality and harassment against trade unionists, including 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). The Committee also notes the comments dated 29 August and 25 September 2012 from the Trade Union Congress of Swaziland (TUCOSWA) on the implementation of the Convention in practice, on the exercise of trade union activities in the country under a repressive and tense atmosphere and without any meaningful social dialogue, and on the non-recognition and purported deregistration of the TUCOSWA by the Government. In view of the continued and long-standing comments from national and international trade unions on the exercise of trade union rights in the country, the Committee cannot but firmly recall 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 serious allegations of the ITUC and the TUCOSWA. Furthermore, recalling that Article 5 of the Convention recognizes the right of workers’ organizations to establish or to join federations and confederations of their own choosing, the Committee requests the Government to take all necessary steps to proceed to the registration of TUCOSWA, including legislative measures if necessary.

Legislative issues. In its previous comments, the Committee noted that the Public Service Bill was being debated in both Houses of Parliament, 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 on August 2011. The Committee notes from the Government’s report that the Bill could not be passed into law in the time required and that the process has since been reinitiated. The Government specifies that the Public Service Bill has been republished in a Government Gazette as Bill No. 4 of 2012 and is now open to the public for consultations and inputs, which gives an opportunity for further consultations with stakeholders. The Bill was further circulated to the Labour Advisory Board and will form part of its agenda. The Committee requests the Government to provide information on the progress made to adopt the Public Service Bill and expresses the firm hope that it will be in full conformity with the provisions of the Convention with regard to trade union rights of public service workers. The Committee requests the Government to transmit a copy of the Bill once it is promulgated into law.

In its previous comments, the Committee noted the entry into force of the Industrial Relations (Amendment) Act of 2010 (Act No. 6 of 2010) which amended a number of provisions of the Industrial Relations Act (IRA), upon which the Committee had been commenting for many years. However, the Committee recalled that it has been requesting the Government to amend its legislation on other pending legal issues.

Determination of a minimum service in sanitary services. 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. In its previous comments, the Committee observed that Act No. 6 of 2010 provides for a clear definition of “sanitary services” in its section 2 and 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. The Committee notes from the Government’s report that section 2 of the IRA has been amended to allow for the establishment of a minimum service in sanitary services and that the Essential Services Committee held a number of meetings with the sanitary services trade unions. The Government indicates that the trade unions needed time to consult with other branches in other towns and city councils and are expected to present a proposed minimum service to the Essential Services Committee. The Committee requests the Government to provide information on the final outcome of discussions engaged with the social partners with respect to the determination of the minimum service to be afforded for sanitary services.

Civil and criminal liabilities of trade union leaders. The Committee recalls that in its previous comments it 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) (civil liability of trade union leaders), 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 a proposal to amend both sections 40 and 97 of the IRA was tabled to the Labour Advisory Board on 8 May 2012 and that social partners are consulting on the issues and are expected to come back shortly to the board with their proposals. The Committee requests the Government to provide information on all progress made to amend sections 40 and 97 of the IRA.

Right to organize for prison staff. The Committee recalls its previous comments on 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 notes from the Government’s report that the Ministry of Justice and Constitutional Affairs tabled the draft Correctional Services (Prison) Bill to the Social Dialogue Committee on 13 July 2011 but that the said committee could not deliberate on the proposed Bill which was then submitted to Cabinet. However, Cabinet directed that the social partners should be given an opportunity to make their input to the draft text which was circulated to the Labour Advisory Board on September 2012. The Committee requests the Government to provide information on all progress made to adopt the Correctional Services (Prison) Bill in order to guarantee the right to organize for prison staff.

Other pending issues concerning legal acts and proclamation. The Committee recalls that its comments also concerned a number of legal acts and proclamation which gave rise to practices contrary to the provisions of the Convention. The Committee takes note of the technical assistance provided by the Office in order to review the provisions of these texts, namely the 1973 Proclamation and its implementation regulations, the Public Order Act of 1963 and the 2005 Constitution of the Kingdom of Swaziland, and to make recommendations for corrective measures where needed. The ILO consultancy took place in 2011 and the report on proposed legislative amendments was circulated to the social dialogue committee on January 2012. It was reported that the said committee reviewed the report several times between February and March 2012. The Committee notes however that, according to the Government, further discussions on the issue were cancelled at the request of the trade unions due to other domestic issues they wanted to deal with. The Committee takes due note of the Government commitment to endeavour to resume the discussions with the social partners in the framework of the social dialogue committee on the recommendations made pursuant to the ILO consultancy and firmly hopes that the Government will be able to report in the near future on progress made on the pending issues:

• -The 1973 Proclamation and its implementing regulations. In relation to the status of this Proclamation, the Committee previously observed 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 also took note of the “Attorney-General’s Opinion” which stated that “on the coming into force of the Constitution, the Proclamation died a natural death”. The Committee notes that the Government maintains in its report that there is no state of emergency in Swaziland. The Government adds that the Decree No. 2 of the King’s Proclamation was introduced for a period of six months and was extended by the Continuation of Period Order of 1973. However, the Detention Order of 1978 – which introduced the 60 days detention without trial or appearing before Court – repealed the Continuation of Period Order of 1973. Furthermore, the Detention (Repeal) Decree of 1993 repealed the Detention Order of 1978. Finally, the Government asserts that the Constitution of 2005, once promulgated, became the supreme law and any other law inconsistent with it is null and void to the extent of its inconsistency. The Committee requests the Government to indicate the outcome of discussions with the social partners and any measures taken thereof in relation to the status of 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 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. The Committee observes that in its report, the Government indicates that the ILO report following the consultancy recommended that the Act be amended and that the Government will submit the proposal to the social dialogue committee. The Committee requests the Government to provide information on the outcome of the discussions in the social dialogue committee on the amendment of the 1963 Public Order Act and on any measures taken thereof in order to ensure that the Act is not used in practice to interfere in trade union meetings or protest actions.

The Committee notes that the ILO technical assistance has also resulted in the drafting by the Government of a code of good practice for protest and industrial action, which is being submitted to the Office for comments. The Committee requests the Government to provide information on any progress made to adopt the code of good practice for protest and industrial action and to provide a copy.

Finally, while acknowledging the Government’s commitment to pursue its efforts in order to address all remaining issues on the application of the Convention in line with its long-standing requests, the Committee cannot but firmly hope that the Government will provide in its next report information on concrete progress made. The Committee also reminds the Government of its duty, under the Convention, to take all appropriate measures to guarantee that trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind.

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

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

Article 3 of the Convention. The Committee recalls that, for a number of years, it had reminded the Government that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action provided the initial strike they are supporting is itself lawful (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 168). While noting that the Industrial Relations Act did not address sympathy strikes and had not yet been amended, the Committee requested the Government to indicate whether, in practice, workers may engage in sympathy strikes without incurring sanctions and to provide information on all measures taken or envisaged in this regard. In its previous comments, the Committee noted from the Government’s report that this matter would be considered by the Labour Advisory Board once a proposal is submitted by the workers’ federations. While noting that the latest report of the Government does not contain any information in this regard, the Committee once again requests the Government to ensure that in practice workers may engage in sympathy strikes without incurring sanctions and to provide information in its next report on the outcome of the consideration of this matter in the Labour Advisory Board.

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

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.

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

The Committee recalls that, in its previous comments, it reminded the Government that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action provided the initial strike they are supporting is itself lawful (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 168). While noting that the Industrial Relations Act did not address sympathy strikes and had not yet been amended, the Committee requested the Government to indicate whether, in practice, workers may engage in sympathy strikes without incurring sanctions and all measures taken or envisaged in this regard. The Committee notes from the Government’s report that this matter will be considered by the Labour Advisory Board once a proposal has been submitted by the workers’ federations. The Committee once again requests the Government to guarantee that in practice workers may engage in sympathy strikes without incurring sanctions and to provide information in its next report on the outcome of the consideration of this matter in the Labour Advisory Board.

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

The Committee notes the information provided in the Government’s reports and the comments, dated 27 August 2010, of the International Trade Union Confederation (ITUC) concerning the issues under examination, as well as allegations of government interference in union affairs and further elaboration around the 2010 May Day incident. The Committee takes note of the comments made by the Government to the ITUC allegations and in particular its assurances that the public service enjoys the freedom of association and right to organize in terms of the Industrial Relations Act, 2000 (as amended) and that as a result, four unions are active and recognized: the Swaziland National Association of Teachers (SNAT), the Swaziland National Association of Government Accounting Personnel (SNAGAP), the Swaziland National Association of Civil Servants (SNACS) and the Swaziland Nurses Association (SNA). According to the Government, these unions bargain with the Government collectively and freely without intimidation. In light of the allegations made by the ITUC that the Public Service Bill currently before Parliament infringed the organizational rights of public sector workers, the Committee requests the Government to indicate the impact that this Bill might have on the rights of public service workers under the Convention and to transmit a copy of the Bill.

The Committee notes the discussion which took place in the Conference Committee in June 2010. The Committee observes that the Conference Committee continued to raise its concern over the lack of progress made on matters that had been raised for many years now and had thus decided to place its conclusions once again in a special paragraph. Further, observing that the Conference Committee had urged the Government to accept a high-level tripartite mission, in order to assist the Government in bringing the legislation into full conformity with the Convention, to inquire into the 2010 May Day incident and to facilitate the promotion of meaningful and effective social dialogue in the country, the Committee welcomes the Government’s acceptance of this mission, which visited the country from 25–28 October 2010. The Committee notes the report of this tripartite mission, its conclusions and recommendations.

The Committee notes with interest from the mission report that certain provisions of the Industrial Relations Act (IRA), upon which it has been commenting for many years, have been amended by the House of Assembly and Senate, were awaiting royal assent and should be shortly promulgated into law. In particular, the Committee observes that Industrial Relations (Amendment) Bill No. 6 of 2010 would appear to:

–      provide 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 Bill);

–      remove the restrictions on the nomination and eligibility of candidates for trade union office in section 29(1)(i) of the IRA;

–      ensure 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; and

–      shorten the compulsory dispute settlement procedures provided in section 85(4) of the IRA by limiting the period for arbitration to 21 days.

The Committee observes from the latest information provided by the Government that the Bill has received royal assent and is now published as the Industrial Relations (Amendment) Act No. 6 of 2010. The Committee trusts that the Amendment Act fully addresses the abovementioned issues and requests the Government to transmit a copy of the IR (Amendment) Act No. 6 of 2010.

As regards its previous request that the Government amend the IRA 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, the Committee observes that the Bill provides for a clear definition of “sanitary services” in section 2. It further understands from the mission report that the Government intends to have discussions with the social partners within the framework of the Essential Services Committee for the determination of the minimum service that should be provided with respect to sanitary services. The Committee notes from the latest information provided by the Government that the Essential Services Committee has discussed this issue with the trade union and the Staff Association. The Committee requests the Government to provide information on the discussions held in this regard and the final outcome with respect to the determination of the minimum service to be afforded for sanitary services.

Finally, noting from the Government’s report that a 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 June 2011, the Committee requests the Government to provide information 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 the Government’s indication that consultations had already been initiated to review the Prisons’ Act. The Committee further notes from the mission report that the Supreme Court judgment in relation to the organizational rights of the Correctional Services Union refers 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. Noting from the Government’s latest report that a zero draft of the Correctional Services Bill was being developed, the Committee urges the Government to consult rapidly the social partners on the measures required in this regard and to propose the necessary legislative amendments without further delay.

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

–      The 1973 Proclamation and its implementing regulations. The Committee takes 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 states that “on the coming into force of the Constitution, the Proclamation died a natural death”. The Committee observes, however, from the 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. In line with the mission’s recommendations, the Committee would request the Government to take all necessary steps to clarify that all provisions of the 1973 Proclamation were now null and void.

–      The 1963 Public Order Act. The Committee recalls that in its previous comments 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 observes from the conclusions of the 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 observes 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 carry out peaceful protest actions. The Committee observes from the latest information provided by the Government that the Ministry of Labour and Social Security was invited to a meeting between the police and the trade unions on 16 November 2010 in preparation for a protest action the following day. The Government indicates that it views the Ministry’s participation at these consultation meetings as a positive development. 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 notes with grave concern from the Conference Committee discussion and the 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 observes that the Government immediately appointed a coroner to carry out an official investigation into the circumstances surrounding this death and requests the Government to provide a copy of the coroner’s report as soon as it is concluded.

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

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee recalls that in its previous comments, it reminded the Government that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action provided the initial strike they are supporting is itself lawful [see General Survey of 1994 on freedom of association and collective bargaining, paragraph 168]. In its previous direct request, while noting that the Industrial Relations Act did not address sympathy strikes and had not yet been amended, the Committee requested the Government to indicate whether, in practice, workers may engage in sympathy strikes without incurring sanctions and all measures taken or envisaged in this regard. The Committee notes that regrettably no information has been provided by the Government in this regard. Therefore, the Committee once again urges the Government to guarantee that in practice workers may engage in sympathy strikes without incurring sanctions and, if necessary, to address this matter within the framework of the legislative review under way.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments of 26 August 2009 by the International Trade Union Confederation (ITUC) concerning issues under examination, as well as to serious acts of brutality from the security forces against peaceful demonstrations and threats of dismissal against trade unionists who took strike action in the textile sector, to the repeated arrests of union leaders, particularly of the Secretary General of the Swaziland Federation of Trade Unions (SFTU), and to the refusal from the public authorities to recognize trade unions. The Committee notes the reply of the Government dated 30 October 2009 contesting in particular the allegations made by the ITUC on arrests of union leaders for participating in protest actions. In reply to the alleged detention of the Secretary-General of the SFTU, the Government indicates that he was not arrested but questioned by the police and his fundamental constitutional rights were not violated. While noting the contradictory nature of the statements from the ITUC and the Government, the Committee wishes to recall, along with the Conference Committee on the Application of Standards, the importance it attaches to the full respect of basic civil liberties such as freedom of expression, of assembly and of the press, and to emphasize once again that freedom of assembly constitutes a fundamental aspect of trade union rights and that the authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, provided that the exercise of these rights does not cause a serious and imminent threat to public order (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 35).

The Committee notes the discussion which took place in the Conference Committee in June 2009. The Committee observes that in its conclusions the Conference Committee regretted that, although the Government had benefited from ILO technical assistance for some time now, including through a high-level mission, the legislative amendments requested for many years have yet to be adopted. The Conference Committee urged the Government to take the necessary measures so that the amendments requested by the Committee of Experts would finally be adopted. It further highlighted its outstanding calls to the Government to repeal the 1973 Decree, to amend the 1963 Public Order Act, as well as the Industrial Relations Act (IRA), and expressed the firm hope that meaningful and expedited progress would be made in the review of the Constitution before the Steering Committee on Social Dialogue, as well as in respect of other contested legislation and bills.

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 and asked the Government:

–           to amend the legislation or enact other laws to ensure that domestic workers (section 2 of the 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 section 86(4) of the IRA 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; and

–           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.

The Committee takes note of the information provided by the Government on 22 May and 9 September 2009 on steps taken so far to amend the legislation on the abovementioned issues. In this regard, the Government indicates that the Labour Advisory Board has agreed in May 2009 on a finalized consensus document of proposed amendments to the Industrial Relations Act (IRA) of 2000, a copy of which was communicated to the Committee. As of September 2009, the Cabinet had received the draft bill scrutinized by the Attorney-General and would be passed into a bill. While taking note of the progress made in this regard, the Committee firmly hopes that the Industrial Relations (Amendment) Bill will be adopted without delay and expects that the Government will provide copy of the new Industrial Relations Act as amended in the near future.

Furthermore, the Committee recalls that its previous comments referred to other legislative issues and provisions that are inconsistent with those of the Convention, as well as a request for information on the effect given to some provisions in practice:

–           The repeal of the 1973 Decree/State of Emergency Proclamation and its implementing regulations concerning trade union rights, and the amendment of the 1963 Public Order Act so that it will not be used to repress lawful and peaceful strikes. On these matters, the Committee notes from the Government’s report that it was decided that constitutional review issues raised by the Committee be referred to the Legal and Institutional Affairs Subcommittee of the High-level Steering Committee on Social Dialogue. Concerning measures envisaged with regard to the 1973 Decree and the 1963 Public Order Act, the Committee notes the Government’s statement according to which it is in the process of reviewing, repealing and harmonizing all laws that may be in conflict with the Constitution of 2005.

–           The amendment of the legislation to ensure that prison staffs have the right to organize in defence of their economic and social interests. The Committee notes from the Government’s report that it has been recommended that the issue of the right to organize of prison staff should be addressed under the law governing the Prison Service (Correctional Services) and that consultations have already been initiated to review the Prisons’ Act.

–           Information on any practical application of 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 information on the effect given in practice 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. In this regard, the Government indicates that it would keep the Office informed of any development.

Recalling that the Conference Committee noted with concern that the Special Consultative Tripartite Subcommittee of the High-level Steering Committee on Social Dialogue had not met for several months, the Committee urges the Government to tackle all pending issues mentioned above in full consultation with the social partners as a matter of urgency. Consequently, the Committee firmly hopes that the Government will take without delay 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; (3) to amend the Prisons’ Act so as to guarantee that prison staff have the right to organize in defence of their economic and social interests; (4) to keep the Office informed of the practical application of section 40 of the IRA with regard to the civil liability of trade union leaders and section 97(1) of the IRA concerning criminal liability of trade union leaders, while ensuring their conformity with the principles enshrined in the Convention.

Taking into account that freedom of association and the effective recognition of the right to collective bargaining are particularly important to enable the attainment of the four strategic objectives of the Organization (see ILO Declaration on Social Justice for a Fair Globalization, 2008), the Committee encourages the Government as a matter of priority to engage with the Office, including through its technical assistance, so as to ensure the full application of the Convention.

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

The Committee wishes to recall that in its previous comments, on the matter of sympathy strikes, the Committee reminded the Government that a general prohibition on such strikes could lead to abuse and that workers should be able to take such action provided the initial strike they are supporting is itself lawful (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 168). With regard to the fact that the Industrial Relations Act does not address sympathy strikes and has not yet been amended, and while noting the indication from the Government’s report that the matter will be taken to the Labour Advisory Board within the framework of legislative review, the Committee trusts that the Government will be able to indicate in its next report whether, in practice, workers may engage in sympathy strikes without incurring sanctions and all measures taken or envisaged in this regard.

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

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.

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

The Committee takes note of the Government’s report.

In its previous comments, on the matter of sympathy strikes the Committee reminded the Government that a general prohibition on such strikes could lead to abuse and that workers should be able to take such action provided the initial strike they are supporting is itself lawful (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 168).

In its report, the Government states that the Industrial Relations Act does not address sympathy strikes and has not yet been amended. The Committee requests the Government once again to state whether, in practice, workers may engage in sympathy strikes without incurring sanctions, and to address the matter eventually within the framework of the legislative review by the Labour Advisory Board. The Committee requests the Government to keep it informed in this regard.

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

1. The Committee takes note of the Government’s report. It also notes the comments of 29 March 2007, by the Swaziland Federation of Trade Unions (SFTU) referring to issues under examination.

2. The Committee wishes to recall that for several years it 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 (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 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)), 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.

3. In this respect, the Committee recalls that in its previous observation it 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 notes that the High-level Social Dialogue Committee has 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 notes, as regards legislative issues, that the Labour Advisory Board (LAB) of a tripartite nature 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 observes that some questions were not included but were pending consultation with the ILO (the right to strike in sanitary services).

The Committee expresses the firm hope that all its comments, and where necessary the technical advice of the Office, will be taken into account in amending the Industrial Relations (Amendment) Bill and that it will be adopted in the near future. It requests the Government to keep it informed of any development in this respect.

Furthermore, the Committee hopes that the Government will 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. The Committee encourages the Government to continue its efforts to review and amend the legislation and to provide information on any development in this respect.

4. Report from the Independent Judicial Inquiry. Finally, the Committee takes due note of the report of the Independent Judicial Inquiry set up as recommended by the Committee and which visited Swaziland from 2 to 9 December 2006, to investigate and clarify all the facts on the allegations of the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) according to which, 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. In particular, the Committee notes that the Independent Judicial Inquiry: (1) was not able to conclude that there was a death of a person during the protest action; however, the inquiry declared itself surprised by the fact that no records on casualties and fatalities were available for the days of the protest and indicated that this situation did not help to remove all doubt; and (2) the security forces used force that was disproportionate to the circumstances and this was substantiated by pictures and witnesses. In these circumstances, while noting that the Government has taken note of the findings of the Independent Judicial Inquiry and continues to discuss them, the Committee would like to recall that the authorities should resort to the use of force only in situations where law and order are seriously threatened, and that the intervention of the forces of law and order should be in due proportion to the danger to law and order that the authorities are attempting to control, and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in disturbance of the peace. The Committee firmly hopes that the Government will guarantee full respect of the principles set out above in the future.

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

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

The Committee takes note of the report of the High-level Mission that visited the country from 21 to 27 June 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 this Convention.

In its previous direct request, the Committee asked the Government to keep it informed of any bills or acts that would affect the rights of civil servants. It notes in this connection that, according to the Mission’s report, civil servants are covered by the Industrial Relations Act (IRA).

In its previous comments, on the matter of sympathy strikes the Committee reminded the Government that a general prohibition on such strikes could lead to abuse and that workers should be able to take such action provided the initial strike they are supporting is itself lawful (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 168). Consequently, the Committee asks the Government to state whether, in practice, workers may engage in sympathy strikes without incurring sanctions.

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

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.

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

The Committee takes note of the Government’s report prepared in response to its previous direct request and in that regard wishes to make the following comments.

Article 2 of the Convention. 1. The Committee notes the Government’s comment that it is not aware of any disadvantage to domestic workers by their exclusion from the definition of "undertaking" in section 2(k)(bb) of the Industrial Relations Act and requests the Government to keep it informed in future reports of any developments in this regard and in relation to any exemptions from the operation of the Act made by the Minister pursuant to section 5.

2. The Committee notes that while the Government’s report stated that it had attached a copy of the Media Council Bill, it regrets that such a copy was not in fact received and once again requests the Government to send a copy of this Bill. In respect of its request for a copy of the Civil Servants Bill, as discussed in Case No. 2019 before the Committee on Freedom of Association, the Committee notes that the Government has explained that there is no such Bill, and requests the Government to keep it informed of any other Bill, or indeed Act, that in the future should affect the rights of civil servants.

Article 3 of the Convention. 1. The Committee notes the Government’s information that the purpose of section 29(1)(i), which places statutory restrictions on the nomination of candidates and eligibility for union office, is to protect the interests of the organizations and their members. The Committee recalls that workers’ and employers’ organizations should have the right to draw up their rules and elect their representatives in full freedom and that the legislative restrictions, such as payment of dues, concern matters relevant to the internal affairs of unions. The Committee therefore once again requests the Government to take the necessary steps to amend section 29(1)(i) so that such matters are left to the rules of the organization concerned, and to keep it informed of any developments in this regard.

2. In its previous request, the Committee had suggested that any supervision over a strike ballot by the Conciliation, Mediation and Arbitration Commission ("CMAC") should only be at the request of workers or their organizations, and had requested the Government to provide further information concerning the practical application of section 86(4), which requires an employer to provide a list to the CMAC of relevant employees prior to a strike ballot at an enterprise. The Committee notes in this regard the Government’s comment that it requires time to consider this observation as its time is devoted to looking into other demanding legislation. The Committee recalls that the Convention guarantees workers’ organizations the right to organize their activities and formulate their programmes without interference from public authorities. For that reason, the Committee once again requests the Government to provide details concerning the practical application of section 86(4) and to take the necessary measures to ensure that the CMAC does not supervise strike ballots, unless requested to do so by the workers or their organizations in accordance with the organization’s own rules.

3. The Committee recalls that it had expressed several concerns in relation to legislative sanctions against workers who took strike action. In relation to section 97(1), which provides that criminal proceedings may be brought where there is reasonable cause to believe that an offence under the Act has been committed by a corporate body, the Committee had requested clarification of the effect of section 97(1) and a copy of the relevant penal provisions that may apply. The Committee also drew the Government’s attention to the need for adequate protection to ensure that section 87, which allows an employer to dismiss an employee during a strike for reasons based on operational requirements, is not used to undermine legitimate strike action; and noted that section 88, under which workers could be summarily dismissed for strike action not in conformity with the Act, would in many cases be disproportionate to the seriousness of the violation. In this regard, the Committee notes the Government’s information that section 97(1) has never been applied and that section 88(6) is intended to act as a deterrent for those employees who may flout the procedural requirements preceding a strike action. The Committee notes, however, that the Government has not replied to its concerns in relation to section 87, nor has it provided a copy of the relevant penal provisions that may apply pursuant to section 97(1). The Committee recalls that sanctions for strike action should only be possible where the prohibitions in question are in conformity with the principles of freedom of association (see General Survey on freedom of association and collective bargaining, 1994, paragraph 177) and once again requests the Government to provide it with a copy of the legislative provisions that would apply to any case that was brought under section 97(1), to provide details of the practical effect of section 97(1), and strongly urges the Government to consider ensuring that sanctions applicable to workers conducting strike action under section 88 are proportionate to the seriousness of the violation and that the operation of section 87 does not undermine strike action. The Committee requests to be kept informed in these respects.

4. In its previous comments, the Committee had suggested that, as sanitary services are not essential services in the strict sense of the term, the Government consider establishing a minimum service in the sanitary services, with workers’ organizations and employers participating in its definition. The Committee notes the Government’s reply that it considers it to be a health risk to remove sanitary services from essential services. In this regard, the Committee repeats its earlier statement that including sanitary services as essential services, and so depriving such workers of their right to strike, is contrary to the Convention but, as sanitary services may become essential due to the extent and duration of a strike action, such services may be considered as a public utility and so it would be compatible with the Convention for a minimum service to be negotiated in this regard. The Committee requests the Government to consider the establishment of such a service in relation to the right to strike of workers in the sanitary services, and to keep it informed in this regard.

5. The Committee notes the Government’s information that the scope of the Industrial Relations Act does not address sympathy strikes in view of the country’s weak economy, which cannot afford such strikes. The Committee recalls that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is itself lawful (see General Survey, op. cit., paragraph 168), and requests the Government to consider amending its legislation accordingly and to keep it informed in this regard.

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

The Committee takes note of the Government’s report, as well as observations made by the Swaziland Federation of Trade Unions (SFTU) and the International Confederation of Free Trade Unions (ICFTU), on which the Committee requests the Government to comment.

Article 2 of the Convention. The Committee notes the Government’s statement that it is considering the question of including prison staff within the scope of the application of the Industrial Relations Act (IRA) and recalls that under Article 2 of the Convention, workers and employers, without distinction whatsoever, have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization. The Committee once again requests the Government to amend its legislation or enact separate legislation to ensure that prison staff are granted the right to organize in defence of their economic and social interests and to keep it informed in this regard.

Article 3. The Committee notes the Government’s comment that it is considering the question of reducing the length of the compulsory dispute settlement procedure required before strike action could be taken legally. The Committee repeats its earlier request to the Government to amend its legislation in order to decrease the length of the compulsory disputes procedure provided for in sections 85 and 86, read with sections 70-82, of the IRA and asks to be kept informed of progress in that regard.

The Committee further notes the Government’s indication that the issue of charges under section 40(13) of the IRA has not arisen and requests the Government to continue to keep it informed of any practical application of section 40 and, in particular, any charges brought by virtue of section 40(13). The Committee further notes that the Government has not provided any information in its report on the Internal Security Bill and once again asks it to indicate whether the Bill has been adopted and, if so, to transmit a copy of the adopted text.

In its previous comments, the Committee had expressed concern that the 1963 Public Order Act and the Decree of 1973, which suppressed trade union rights and, in particular, section 12, appeared still to be in force and invoked by the Government. The Committee stated its hope that the process to draft the national Constitution in conformity with international standards would ensure that trade union rights would be respected and that the Decree would finally be repealed. The Committee asked the Government to keep it informed in its next report on all progress made in this regard.

While the Committee notes that the Government has not provided any information on the drafting of the new Constitution, it observes that the SFTU has raised serious concerns in its comments about both the drafting process and the content of the Constitution, which has apparently been approved by Parliament. The Committee requests the Government to provide detailed information in its next report on the matters raised by the SFTU and urges it to take all necessary measures to ensure that the Constitution does not contravene the provisions of the Convention and so that its adoption will result in the effective repeal of the 1973 Decree. The Committee further requests the Government to furnish a copy of the draft Constitution with its next report.

Finally, the Committee notes the comments of the ICFTU indicating that a three-day protest by Swazi labour federations in August 2003 was violently broken up by police using tear gas and rubber bullets, during which one trade unionist was killed. The Committee recalls that freedom of assembly constitutes a fundamental aspect of trade union rights and that the authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, provided that the exercise of these rights does not cause a serious and imminent threat to public order (see General Survey on freedom of association and collective bargaining, 1994, paragraph 35). Further, the Committee has stressed that, when disorders have occurred involving loss of human life or serious injury, the setting up of an independent judicial inquiry is a particularly appropriate method of fully ascertaining the facts, determining responsibilities, punishing those responsible and preventing the repetition of such actions. Judicial inquiries of this kind should be conducted as promptly and speedily as possible, since otherwise there is a risk of de facto impunity which reinforces the climate of violence and insecurity and which is therefore highly detrimental to the exercise of trade union activities (see General Survey, op. cit., paragraph 29). The Committee requests the Government to indicate, in its next report, the outcome of inquiries held in respect of the trade unionist killed during the protest.

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

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report.

In its previous comments the Committee requested the Government to provide information on the impact of the rights under the Convention for domestic workers given their exclusion from the term "undertaking" in section 2(k)(bb) of the Industrial Relations Act. The Committee had also requested to be kept informed of any exemptions from the operation of the Act made by the Minister pursuant to section 5. The Government replies in its report that the definition of "undertaking" does not make a distinction between a regular employee and casual employee. Furthermore, the Government states that the Labour Advisory Board (LAB) may consider the Committee’s comment and, if necessary and practicable, it would make the necessary recommendation for amendment. Recalling that Article 2 of the Convention provides that all workers without distinction whatsoever shall have the right to form and join organizations of their own choosing, the Committee requests the Government to keep it informed of the LAB recommendations and of any future developments in this regard.

The Committee in its previous direct request noted the allegations raised in Case No. 2019 before the Committee on Freedom of Association regarding the Government’s intention to introduce a Media Council Bill and a Civil Servants Bill aimed at denying freedom of expression and the rights of journalists and civil servants, respectively. The Committee once again requests the Government to keep it informed of the status of these Bills, and to transmit copies with its next report so that their compatibility with the Convention can be assessed.

Article 3 of the Convention. The Committee notes that the Government’s report contains no reply to its previous comments in respect of this Article of the Convention and therefore finds itself obliged to reiterate the following points.

The Committee had noted that, in order to be registered, the constitution of an organization has to contain a number of provisions, including that, subject to the terms of the Act and the constitution of the organization, only paid-up members could vote in the election of officers, nominate a candidate for any office, be nominated for, or be elected to, any office, or express views on candidates and other issues (section 29(1)(i)). The Committee once again requests the Government to take measures to ensure that any such restrictions placed on the nomination of candidates and eligibility for office are left to the rules of the organization concerned, in keeping with the right of workers’ and employers’ organizations to draw up their rules and elect their representatives in full freedom.

The Committee had noted that, pursuant to the Act, there must be a strike ballot before a strike would be taken lawfully (section 86), and responsibility for arranging and supervising the ballot was entrusted to the Conciliation, Mediation and Arbitration Commission (CMAC). The Committee suggests that, where such supervision takes place, it should be at the request of the workers or their organizations, so as to ensure that workers’ organizations are able to organize their activities and formulate their programmes without interference from the public authorities. The Committee also requests the Government to provide details concerning the practical application of section 86(4), which requires that the employer provide a list to the CMAC of the relevant employees prior to a ballot concerning strike action at the enterprise.

With respect to sanctions for taking strike action, while noting that imprisonment can no longer be imposed for unlawful industrial action, the Committee once again requests the Government to clarify the effect of section 97(1) providing that criminal proceedings may be brought against certain persons where there is reasonable cause to believe that an offence under the Act has been committed by a corporate body. The Committee also requests a copy of the relevant penal provisions that may apply. The Committee also noted section 87 which allows an employer to dismiss an employee during a strike for reasons based on the employer’s operational requirements, and drew the Government’s attention to the need for adequate protection to ensure that this provision is not used to undermine legitimate strike action. The Committee also noted that workers could be summarily dismissed if strike action was taken that was not in conformity with the Act (section 88). In many cases such a sanction would be disproportionate to the seriousness of the violation (particularly in the light of the complex and lengthy dispute settlement procedures).

The Committee noted that, while the general definition of "essential services" complied with that accepted by the Committee, a list of services which are deemed to be essential was also set out and included, inter alia, sanitary services. The Committee considers that sanitary services should not be considered essential in the first instance, though they may become essential due to the extent and duration of the strike (see General Survey on freedom of association and collective bargaining, 1994, paragraph 160). However, while not essential services in the strict sense of the term, sanitary services do constitute a public utility; therefore, the Government may want to consider the establishment of a minimum service in sanitary services with workers’ organizations and employers participating in the definition of such service (General Survey, 1994, paragraphs 160-161).

The Committee noted that while there was no longer an express prohibition of sympathy action in the Act, due to the definition of "protected strike", sympathy action appears to continue to be prohibited. The Committee requests the Government to address this matter in its next report.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the report of the Government and the statement made by the Government representative to the Conference Committee in 2002 and the discussion that followed. It further notes the comments made by the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention and requests the Government to transmit its comments thereon.

Article 2 of the Convention. Noting the statement in the Government’s report, that due to the unique local conditions no legislative changes have been made to ensure the right to organize for prison staff, the Committee recalls that under Article 2 of the Convention, workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization. The Committee once again requests the Government to amend its legislation or enact separate legislation to ensure that prison staff are granted the right to organize in defence of their economic and social interests.

Article 3. In its previous comments, the Committee had noted the lengthy procedure required before strike action could be taken legally, and had recalled that provisions which require workers’ organizations to observe certain procedural rules before launching a strike are admissible, provided they do not make the exercise of the right to strike impossible or very difficult in practice. The Committee notes that the Government did not address this issue in its report. The Committee once again requests the Government to amend its legislation in order to decrease the length of the compulsory dispute settlement procedure provided for in sections 85 and 86, read with sections 70 to 82, of the Industrial Relations Act (IRA), 2000, and asks to be kept informed of progress in that regard.

The Committee also drew the attention of the Government to section 40(13) of the Act which ensures that federations, unions and individuals involved in protest action may only be subject to civil liability for criminal, malicious or negligent acts. The Committee requests once again that the Government keep it informed in future reports of any practical application of section 40 and, in particular, in regard to any charges brought by virtue of section 40(13).

Moreover, the Committee takes note with concern of the provisions in the Internal Security Bill, 2002, which confer broad powers on the public authorities to restrict public gatherings and boycotts under penalty of imprisonment. The Committee considers that such provisions could impair the guarantees set out in Article 3 of the Convention. It therefore requests the Government to indicate in its next report whether this Bill has been adopted and, if so, to transmit a copy of the adopted text.

In previous comments, the Committee had noted that section 12 of the Decree of 1973 on the rights of organizations was incompatible with the provisions of the Convention as it suppressed trade union rights and had expressed its hope that it would be abrogated with the adoption of the Industrial Relations Act of 2000. The Committee notes with concern that during the discussions of the application of the Convention at the Conference Committee in 2002, the 1973 Decree appears still to be in force. The Committee notes from the statement made by the Government representative that a committee has been established to draft the national Constitution in conformity with international standards. The Committee trusts that the process will ensure that trade unions rights will be respected and that the Decree of 1973, which had suspended all constitutional freedoms, will finally be repealed. The Committee requests the Government to keep it informed in its next report on all progress made in this regard.

The Committee is also addressing a request on certain other points directly to the Government.

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

With reference to its observation, the Committee notes with interest the amendments made to section 40 of the Industrial Relations Act regarding balloting requirements and supervision of the ballot by the Conciliation, Mediation and Arbitration Commission (CMAC), in respect of peaceful protest actions. The Committee also notes with interest that organizations are no longer responsible for public safety during the protest action, as section 40(1)(c) stipulates that notice must be given to the authorities responsible for public order so that the necessary measures can be taken to ensure the safety of protesters and the public. The Committee also notes with interest that section 40(5) requiring the employer to provide a list of the relevant employees to the Commission prior to a ballot has also been repealed.

The Committee also draws the Government’s attention to the points raised in its previous direct request, which read as follows:

The Committee notes that the definition of the term "undertaking" continues to exclude domestic workers (section 2). The Committee again requests the Government to provide information on the impact of the rights under the Convention for domestic workers given their exclusion from the term "undertaking". The Committee also requests to be kept informed of any exemptions from the operation of the Act made by the minister pursuant to section 5.

The Committee notes the allegations raised in Case No. 2019 before the Committee on Freedom of Association regarding the Government’s intention to introduce a Media Council Bill and a Civil Servants Bill aimed at denying freedom of expression and the rights of journalists and civil servants, respectively. While taking note of the Government’s reply in Case No. 2019, the Committee requests the Government to keep it informed of the progress of these Bills through the legislative process, and to provide copies of the Bills to the Office as soon as possible so that their compatibility with the Convention can be assessed.

  Article 3 of the Convention. The Committee notes that in order to register, the constitution of an organization has to contain a number of provisions, including that subject to the terms of the Act and the constitution of the organization, only paid-up members may vote in the election of officers, nominate a candidate for any office, be nominated for, or be elected to any office, or express views on candidates and other issues (section 29(1)(i)). The Committee requests the Government to take measures to ensure that any such restrictions placed on the nomination of candidates and eligibility for office are left to the rules of the organization concerned, in keeping with the right of workers’ and employers’ organizations to draw up their rules and elect their representatives in full freedom.

The Committee notes that pursuant to the Act, there must be a strike ballot before a strike can be taken lawfully (section 86), and responsibility for arranging and supervising the ballot rests with the CMAC. The Committee suggests that where such supervision takes place, it is at the request of the workers or their organizations, to ensure that workers’ organizations are able to organize their activities and formulate their programmes without interference from the public authorities. The Committee also requests the Government to provide details concerning the practical application of section 86(4) requiring that the employer provide a list to the Commission of the relevant employees prior to a ballot concerning strike action at the enterprise.

With respect to sanctions for taking strike action, while noting that imprisonment can no longer be imposed for unlawful industrial action, the Committee requests the Government to clarify the effect of section 97(1) providing that criminal proceedings may be brought against certain persons where there is reasonable cause to believe that an offence under the Act has been committed by a corporate body. The Committee also requests a copy of the relevant penal provisions that may apply. The Committee also notes section 87 which allows an employer to dismiss an employee during a strike for reasons based on the employer’s operational requirements, and draws to the Government’s attention the need for adequate protection to ensure that this provision is not used to undermine legitimate strike action. The Committee also notes that workers may be summarily dismissed if strike action is taken that is not in conformity with the Act (section 88). In many cases such a sanction would be disproportionate to the seriousness of the violation (particularly in the light of the complex and lengthy dispute settlement procedures).

The Committee notes that while the general definition of "essential services" complies with that accepted by the Committee, a list of services which are deemed to be essential is also set out, and includes, inter alia, sanitary services. The Committee notes that sanitary services should not be considered essential in the first instance, though they may become essential due to the extent and duration of the strike (see General Survey on freedom of association and collective bargaining, 1994, paragraph 160). However, while not essential services in the strict sense of the term, sanitary services do constitute a public utility; therefore, the Government may want to consider the establishment of a minimum service in sanitary services with workers’ organizations and employers participating in the definition of such service (1994 General Survey, paragraphs 160-161).

The Committee notes that while there is no longer an express prohibition of sympathy action in the Act, due to the definition of "protected strike", sympathy action appears to continue to be prohibited. The Committee requests the Government to address this matter in its next report.

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

The Committee takes note of the statement made by the Government representative to the Conference Committee in 2000 and the discussion that followed. It also notes the adoption of Act No. 8 of 2000, modifying sections 29, 40 and 52 of the Industrial Relations Act (IRA) of 2000. The Committee further notes the Swaziland Employers Federation’s comment concerning certain discrepancies between Decree No. 2 (King’s Proclamation) of 2001 and the provisions of the Convention, and the Government’s transmittal of Decree No. 3 of 2001, which repeals Decree No. 2 in its entirety.

In its previous comments, the Committee had noted the lengthy procedure and excessive balloting requirements to hold a peaceful protest action under section 40 of the Act, and the withdrawal of all immunity for civil liability for those involved in such a protest. The Committee notes with interest that Act No. 8 of 2000 has amended section 40 of the IRA, so as to reduce the waiting period before such protest action may take place. Regarding the balloting requirements, the Committee further notes with interest the amendments made to section 40(8) of the Act. Regarding the question of civil liability, the Committee notes that amended section 40(13) of the Act has been amended to provide that federations, unions and individuals involved in protest action may only be subject to civil liability for criminal, malicious or negligent acts. The Committee requests the Government to keep it informed in future reports of any practical application of section 40 and, in particular, as concerns any charges brought by virtue of section 40(13).

Article 2 of the Convention. The Committee had noted in its previous comments that His Majesty’s Correctional Services were specifically excluded from the scope of the Act, and had requested the Government to provide information as to whether and to what extent they were entitled to organize. According to the statement made by the Government representative, prison staff form an integral part of the armed forces of Swaziland, and thus their exclusion from the scope of the Act is justified. The Committee recalls that the functions exercised by prison staff do not justify their exclusion from the right to organize under Article 9 of the Convention. However, restrictions may be imposed on those workers in respect of their right to strike. The Committee requests the Government to amend its legislation so that prison staff are granted the right to organize in defence of their economic and social interests and to keep it informed of the measures taken or envisaged in this respect.

Article 3. In its previous comments, the Committee had noted the lengthy procedure required before strike action could be taken legally, and had requested the Government to inform it of any measures taken or proposed to decrease the length of this compulsory dispute settlement procedure. The Committee recalls that provisions which require workers’ organizations to observe certain procedural rules before launching a strike are admissible, provided they do not make the exercise of the right to strike impossible or very difficult in practice (see General Survey on freedom of association and collective bargaining, 1994, paragraph 179). The Committee requests the Government to amend its legislation in order to decrease the length of the compulsory dispute settlement procedure provided for in sections 85 and 86, read with sections 70 to 82, of the IRA.

The Committee is also addressing a request on other points directly to the Government.

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

The Committee notes the information provided in the Government’s report, as well as the Industrial Relations Act, 2000 (the Act).

The Committee notes that the definition of the term "undertaking" continues to exclude domestic workers (section 2). The Committee again requests the Government to provide information on the impact of the rights under the Convention for domestic workers given their exclusion from the term "undertaking". The Committee also requests to be kept informed of any exemptions from the operation of the Act made by the Minister pursuant to section 5.

The Committee notes the allegations raised in Case No. 2019 before the Committee on Freedom of Association regarding the Government’s intention to introduce a Media Council Bill and a Civil Servants Bill aimed at denying freedom of expression and the rights of journalists and civil servants, respectively. While taking note of the Government’s reply in Case No. 2019, the Committee requests the Government to keep it informed of the progress of these Bills through the legislative process, and to provide copies of the Bills to the Office as soon as possible so that their compatibility with the Convention can be assessed.

Article 3 of the Convention.  The Committee notes that in order to register, the constitution of an organization must contain a number of provisions, including that subject to the terms of the Act and the constitution of the organization, only paid up members may vote in the election of officers, nominate a candidate for any office, be nominated for, or be elected to any office, or express views on candidates and other issues (section 29(1)(i)). The Committee requests the Government to take measures to ensure that any such restrictions placed on the nomination of candidates and eligibility for office are left to the rules of the organization concerned, in keeping with the right of workers’ and employers’ organizations to draw up their rules and elect their representatives in full freedom.

Right to strike.  The Committee notes that pursuant to the Act, there must be a ballot before a strike can be taken lawfully (section 86), and responsibility for arranging and supervising the ballot rests with the Conciliation, Mediation and Arbitration Commission (CMAC). The Committee suggests that where such supervision takes place, it is at the request of the workers or their organizations, to ensure that workers’ organizations are able to organize their activities and formulate their programmes without interference from the public authorities. The Committee also requests the Government to provide details concerning the requirement that the employer is to provide a list of the relevant employees prior to a ballot (section 86(4)) in the light of the fact that this provision should not be able to be used to allow employers to determine which specific employees are seeking to take strike action, which may give rise to victimization.

With respect to sanctions for taking strike action, while noting with satisfaction that imprisonment can no longer be imposed for unlawful industrial action, the Committee requests the Government to clarify the effect of section 97(1) providing that criminal proceedings may be brought against certain persons where there is reasonable cause to believe that an offence under the Act has been committed by a body corporate. The Committee also requests a copy of the relevant penal provisions that may apply. The Committee also notes section 87 which allows an employer to dismiss an employee during a strike for reasons based on the employers’ operational requirements, and draws to the Government’s attention the need for adequate protection to ensure that this provision is not used to undermine legitimate strike action. The Committee also notes that workers may be summarily dismissed if strike action is taken that is not in conformity with the Act (section 88); in many cases such a sanction would be disproportionate to the seriousness of the violation (particularly in the light of the complex and lengthy dispute settlement procedures).

The Committee notes that while the general definition of "essential services" complies with that accepted by the Committee, a list of services which are deemed to be essential is also set out, and includes, inter alia, sanitary services. The Committee notes that sanitary services should not be considered essential in the first instance, though they may become essential due to the extent and duration of the strike (see 1994 General Survey on freedom of association and collective bargaining, paragraph 160). However, while not essential services in the strict sense of the term, sanitary services do constitute a public utility; therefore, the Government may want to consider the establishment of a minimum service in sanitary services with workers’ organizations and employers participating in the definition of such service (General Survey, op. cit., paragraphs 160-161).

The Committee notes that, although the Act now permits peaceful protest action (section 40), mandatory prerequisites similar to those required for a strike in furtherance of a trade dispute are set out, and it considers such prerequisites are generally not conducive to the exercise of the right to take protest action. With respect to the balloting requirements, which the Committee considers to be excessive in the context of protest action, the Committee suggests that if a balloting requirement is maintained, consideration be given to requiring a majority vote by the affiliated unions where a federation calls for protest action as set out in the preliminary draft amendments to the Act prepared in the course of the recent ILO technical advisory mission. The Committee also notes that as in the case of trade disputes, responsibility for arranging and supervising the ballot rests with the CMAC. The Committee again suggests that where such supervision takes place, it is at the request of the workers or their organizations, in keeping with the right of workers’ organizations to organize their activities and formulate their programmes without interference from the public authorities. The Committee again requests the Government to provide details concerning the requirement that the employer is to provide a list of the relevant employees prior to a ballot in the light of the fact that this provision should not be able to be used to allow employers to determine which specific employees are seeking to take strike action, which may give rise to victimization. The Committee also notes that requiring the party intending to take action to state the measures taken to ensure the safety of protesters, implies that the organizations are fully responsible for public safety during protest action, whereas normally this would be the responsibility of the public authorities. The organization must also serve notice on the employer or employers’ organization concerned, which, if this involves serving notice on each individual employer who might be affected by the action, would be another onerous prerequisite.

The Committee notes that while there is no longer an express prohibition of sympathy action in the Act, due to the definition of "protected strike", sympathy action appears to continue to be prohibited. The Committee requests the Government to address this matter in its next report.

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

The Committee notes the information provided in the Government’s report, the statement made by the Government representative to the 2000 Conference Committee and the discussion that followed as well as the recent ILO technical advisory mission to the country (November 2000) during which preliminary draft amendments to the Industrial Relations Act were prepared with the authorities. The Committee also notes the case examined by the Committee on Freedom of Association (Case No. 2019, 321st Report).

The Committee notes with satisfaction that a number of the discrepancies between the legislation and the provisions of the Convention which the Committee had raised previously have been addressed through the adoption of the Industrial Relations Act, 2000 (the Act) which received Royal Assent on 6 June 2000, an earlier draft of which was prepared with ILO technical assistance and in consultation with the social partners. In particular the following issues have been satisfactorily addressed:

­-  the definition of "employee" no longer excludes casual workers (section 2); these workers are, therefore, no longer excluded from the Act and thus from the rights set out in the Convention;

­-  workers are no longer obliged to organize within the context of the industry within which they exercise their activity, and the Labour Commissioner is no longer entitled to refuse to register a trade union if he or she is satisfied that an already registered organization is sufficiently representative;

-  it appears that imprisonment can no longer be imposed as a sanction for unlawful industrial action or for a federation or any of its officers causing or inciting the cessation or slowdown of work;

-  the activities of federations have been expanded to include advice, consultation, collective bargaining, defence and promotion of the collective interests of their members, including matters of public policy and public administration (section 32(2));

-  the prohibition of the right to strike in the broadcasting sector has been repealed;

-  while the Act continues to provide for a strike to be ended if it is found to threaten the "national interest" (section 89), the definition of "national interest" is in conformity with what the Committee considers to be essential services, that is to say those services the interruption of which has or is likely to have the effect of endangering the life, health or personal safety of the whole or part of the population (section 2);

-  the court is no longer empowered to limit the non-occupational activities or wind up an organization or federation because it has devoted more funds and more time to campaigning on issues of public policy or public administration than to protecting the rights and advancing the interests of its members;

-  the court is no longer empowered to cancel or suspend registration of an organization taking strike action that is not in conformity with the Act, even for simple procedural violations;

-  the obligation to consult the Minister prior to international affiliation has been repealed.

While noting that the Act constitutes a considerable improvement over the previous legislation, the Committee draws the Government’s attention to the discrepancies between the Act and the requirements of the Convention noted below.

Article 2 of the Convention.  The Committee notes that His Majesty’s Correctional Services are specifically excluded from the scope of the Act (section 3). The Committee recalls its comments concerning the 1996 Industrial Relations Act, that pursuant to the Convention, workers without distinction whatsoever should be entitled to form and join organizations of their own choosing, with the possible exception of the police and armed forces. While prison staff may be denied the right to strike, since they are undertaking an essential service, they cannot be denied the right to organize. The Committee requests the Government to provide information as to whether and to what extent prison staff are entitled to organize, and to forward a copy of the relevant legislative text providing therefore.

Right to strike.  The Committee notes that a lengthy procedure is required to be followed before strike action can be taken legally (thus constituting a "protected" strike). From the time a dispute is reported to the Labour Commissioner to the time the workers are entitled legally to strike, 70 days will have elapsed. The Committee recalls that the dispute settlement procedure should not be so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness (see General Survey on freedom of association and collective bargaining, 1994, paragraph 171). The Committee requests the Government to inform it of any measures taken or proposed to decrease the length of the compulsory dispute settlement procedures.

The Committee notes that according to the Government’s report, section 40 of the Act concerning peaceful protest action, addresses the concerns raised previously by the Committee regarding section 12 of the Decree on the rights of organizations of 1973, and the 1963 Public Order Act. The Committee notes, however, that while the Act now permits peaceful protest action, mandatory prerequisites similar to those required for a strike in furtherance of a trade dispute are set out; it considers that such prerequisites are generally not conducive to the exercise of the right to take protest action. The Committee notes that pursuant to the procedures set out in section 40, 32 days will have elapsed before such action can be taken which the Committee considers would result in protest action becoming impossible in practice or losing its effectiveness. The Committee also considers that the balloting requirements are excessive in the context of protest action, since in the case of national protest action, for example, essentially a national referendum would need to be taken, which could itself give rise to a long and onerous procedure. It should be recalled that the Committee has consistently held that the requirements for a strike ballot should not be such as to render the possibility of exercising the right to strike very difficult, or even impossible in practice (see General Survey, op. cit., paragraph 170). The Committee also notes that section 40(13) appears to open all federations, unions and individuals involved in protest action to civil liability, even if all the prerequisites under the Act are fulfilled. By essentially withdrawing all immunity for civil liability, the Committee is of the view that the right to take protest action to promote socio-economic interests is in practice seriously restricted, since the costs to unions, federations, their affiliates and members could be prohibitive. The Committee  expresses the firm hope that the preliminary draft amendment of section 40 prepared in the framework of the technical advisory mission will be adopted without delay in order to bring the legislation into closer conformity with the requirements of the Convention.

The Committee is also addressing a request directly to the Government.

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

The Committee notes that the 1996 Industrial Relations Act defines undertakings, among others, as being those employing more than ten persons engaged in the clearing and felling of trees, construction of roads and cultivation of land and that it specifically excludes domestic service in a private house (section 2). It further notes that casual employees are specifically excluded from the term "employee". The Committee would recall in this regard that Article 2 of the Convention applies to all workers, without distinction whatsoever, and thus the provisions in the Act concerning the right to organize should apply to all workers including domestic workers, casual employees and those engaged in undertakings with ten or fewer employees, including rural workers on small farms. While noting that the Industrial Relations Bill has eliminated the restrictions in respect of the number of persons engaged in an undertaking and in respect of casual employees, the Bill would appear to maintain the exclusion of domestic workers from the meaning of the term "undertaking".

The Committee trusts that the Bill will be adopted in the near future so as to ensure the full application of the provisions of the Convention to casual employees and workers in undertakings of ten or fewer employees in agriculture, the clearing and felling of trees, construction of roads and trade or industry. It further requests the Government to provide information on the impact on the rights under this Convention for domestic workers of their exclusion from the term "undertaking".

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

The Committee notes the statement made by the Government representative to the 1999 Conference Committee and the discussion which took place therein as well as the comments made by the Swaziland Federation of Trade Unions (SFTU) on the application of this Convention.

The Committee once again recalls that its previous comments concerned the following discrepancies between the 1996 Industrial Relations Act and the provisions of the Convention:

-- the exclusion of prison staff from the provisions of the Act (section 91(c)) and thus from the right to organize;

-- the obligation upon workers to organize within the context of the industry in which they exercise their activity (section 27 of the Act) and the power of the Labour Commissioner to refuse to register a trade union if he or she is satisfied that an already registered organization is sufficiently representative (section 30(5) of the Act);

-- the prohibition of a federation or any of its officers from causing or inciting the cessation or slow-down of work or economic activity upon punishment of imprisonment up to five years (section 40(3) of the Act);

-- limitation of the activities of federations to that of providing advice and services (section 40 of the Act);

-- prohibition of the right to strike in the broadcasting sector under punishment of one year's imprisonment for the holder of an office in an organization or federation and possible disqualification from holding office for one year (section 73(5 and 6) of the Act);

-- power of the Minister to apply to the court to enjoin any strike or lock-out if he or she considers that the "national interest" is threatened (section 70(1) of the Act);

-- important restrictions of the rights of organizations to hold meetings and peaceful demonstrations (section 12 of the 1973 Decree on meetings and demonstrations);

-- the prohibition of sympathy strikes (section 87(1)(e) of the Act);

-- strike ballots conducted by the Commissioner of Labour and the requirement that a majority of the employees concerned approve such action (section 66(1)(b));

-- penal sanctions ranging from one to five years for various "unlawful" forms of industrial action under sections 69(2), 72(3), 73(3-5), 74 and 87(3), including with respect to restrictions which are in violation of the principle of the right to strike;

-- the power of the court to limit the non-occupational activities or wind up an organization or federation which has devoted more funds and more of the time of its officers to campaigning on issues of public policy or public administration than to protecting the rights and advancing the interests of its members (section 42(2));

-- the power of the court to cancel or suspend registration of any organization taking strike action which is not in conformity with the Act, even for simple procedural violations (section 69(1)(b));

-- obligation to consult the Minister prior to international affiliation (section 41(1) of the Act.

The Committee had however noted that a new Industrial Relations Bill drafted by a national tripartite committee in 1998, with the technical assistance of the International Labour Office, had eliminated the abovementioned discrepancies.

The Committee notes with deep regret from the Government's statement at the 1999 Conference Committee on the Application of Conventions and Recommendations that this Bill is still being discussed in Parliament despite the urgency of the calls to the Government both from the Conference Committee and this present Committee to take the necessary steps to ensure the adoption of the Bill in the very near future.

As concerns section 12 of the 1973 Decree on the rights of organizations and the 1963 Public Order Act, the Committee notes the concerns once again expressed by the SFTU in its comments that these provisions were used to suppress legitimate workers' action. The Committee expresses the firm hope that the Government will take the necessary measures, including through the passage of the Industrial Relations Bill, to ensure that the 1973 Decree and the 1963 Public Order Act may no longer be used to interfere with the rights of workers' organizations to organize their administration and activities and to formulate their programmes.

The Committee must once again express the firm hope that the Industrial Relations Bill will be adopted in the very near future. It requests the Government to transmit a copy of the final text to the Office as soon as it is adopted.

The Committee is also addressing a request directly to the Government on certain points.

[The Government is asked to provide full particulars to the Conference at its 88th Session.]

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information provided in the Government's report, as well as the statement made by the Government representative to the 1998 Conference Committee and the discussion which took place therein. The Committee also notes the examination by the Committee on Freedom of Association of Case No. 1884 (311th Report, approved by the Governing Body at its 273rd Session (November 1998)).

The Committee would recall that its previous comments concerned numerous discrepancies between the 1996 Industrial Relations Act (IRA) and the provisions of the Convention. The Committee notes from the discussion in the Conference Committee that a national tripartite committee has drafted a new Industrial Relations Bill, with the technical assistance of the International Labour Office, which is aimed at bringing the industrial relations legislation into closer conformity with international labour standards. Upon the adoption of this Bill, the 1996 IRA would be repealed.

The Committee notes that the latest version of the Industrial Relations Bill would appear to resolve all the matters which had been raised in its previous comments. It notes from the Government's report that the Bill has been approved by Cabinet and is on its way to Parliament. The Committee must recall, however, the conclusions of the 1998 Conference Committee on the Application of Conventions and Recommendations in which the Government had been urged to ensure that this Bill be adopted before the possible dissolution of Parliament. The Committee urges the Government to take the necessary measures so that the Bill may be adopted in the very near future and requests it to transmit a copy of the text as soon as it has been passed.

As concerns its outstanding comments in respect of section 12 of the 1973 Decree on the Rights of Organizations and the 1963 Public Order Act, the Committee notes from the report of the Committee on Freedom of Association that the Government considers that these matters will be resolved as soon as the Industrial Relations Bill becomes law. The Committee would recall that the 1973 Decree and the 1963 Act, while concerning more generally mass actions which would result in a disturbance of the peace, had been used in the past to suppress strike action. The Industrial Relations Bill would indeed now appear to grant the exercise of such strike action by way of right. Furthermore, the Committee notes that section 103(1) of the Bill provides that a person holding a public office, or acting or purporting to act on behalf of anyone holding such office, shall not exercise any power conferred by or under any law in such a way as to impede the exercise of rights conferred or recognized by this Act. The Committee expresses the firm hope that, with the passage of this Bill, the 1973 Decree and the 1963 Public Order Act will no longer be able to be used in a manner so as to suppress legitimate trade union activities. In the meantime, the Committee trusts that the Government will take all measures necessary to ensure that neither the 1973 Decree nor the 1963 Public Order Act are used to suppress trade union activities.

[The Government is requested to provide full particulars to the Conference at its 87th Session.]

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

The Committee notes the information provided in the Government's report received in April 1997, as well as the statement made by the Government representative to the 1997 Conference Committee and the discussion which took place therein.

The Committee recalls that its previous comments concerned numerous discrepancies between the Industrial Relations Act of 1995 (which came into force in January 1996) and the provisions of the Convention. While noting from the discussion in the Conference Committee the Government's indication that the recommendations made by the national Labour Advisory Board concerning amendments to the IRA would be discussed at the end of June with the social partners and that the final amendment Bill would be passed through Parliament by August 1997, the Committee notes with regret that it has not received any information from the Government concerning the progress made in this regard.

With regard to the Government's indication that prison staff, who are excluded from the right to organize by virtue of section 91(c) of the Act, are primarily the same as the police and the defence force and are referred to as the "armed forces", the Committee recalls that Article 2 of the Convention refers to the right to organize for workers and employers without distinction whatsoever. The Committee would draw the Government's attention in this regard to paragraph 56 of its 1994 General Survey on freedom of association and collective bargaining in which it indicates that the functions exercised by prison staff should not justify their exclusion from the right to organize based on the argument that they might be excluded under Article 9. On the other hand, prison staff may be deprived of the right to strike. The Committee asks the Government to provide a copy of the regulations governing the conditions of employment of prison staff.

Regarding the obligation upon workers to organize within the context of the industry in which they exercise their activity (section 27 of the Act) and the power of the Labour Commissioner to refuse to register a trade union if he or she is satisfied that an already registered organization is sufficiently representative (section 30(5) of the Act), the Committee notes the Government's indication that this does not pose any functional problem and that the labour force is too small to afford union multiplicity. The Committee once again recalls however that Article 2 of the Convention provides that workers and employers shall have the right to establish and join organizations of their own choosing and that, while it was clearly not the purpose of the Convention to make trade union diversity an obligation, it does at the very least require this diversity to remain possible in all cases (see 1994 General Survey, paragraph 91). However, the Committee has noted provisions in some countries which attempt to establish a proper balance between imposed trade union unity and the fragmentation of organizations by establishing the concept of the most representative trade unions which are generally granted a variety of rights and advantages. The Committee has considered that such provisions are not contrary to the principle of freedom of association provided that the determination of the most representative organizations is based upon objective, pre-established and precise criteria and that the distinction is limited to the recognition of certain preferential rights, such as collective bargaining or national consultation (see 1994 General Survey, paragraph 97).

Furthermore, the Committee would recall the following discrepancies between the legislation and the provisions of the Convention:

-- the prohibition of a federation or any of its officers from causing or inciting the cessation or slow-down of work or economic activity upon punishment of imprisonment up to five years (section 40(3) of the Act);

-- limitation of the activities of federations to that of providing advice and services (section 40 of the Act);

-- prohibition of the right to strike in the broadcasting sector under punishment of one year imprisonment for the holder of an office in an organization or federation and possible disqualification from holding office for one year (section 73(5 and 6) of the Act);

-- power of the Minister to apply to the court to enjoin any strike or lock-out if he or she considers that the "national interest" is threatened (section 70(1) of the Act);

-- important restrictions of the rights of organizations to hold meetings and peaceful demonstrations (section 12 of the 1973 Decree on meetings and demonstrations);

-- the prohibition of sympathy strikes (section 87(1)(e) of the Act);

-- strike ballots conducted by the Commissioner of Labour and the requirement that a majority of the employees concerned approve such action (section 66(1)(b)) (see 1994 General Survey on freedom of association and collective bargaining, paragraph 170);

-- penal sanctions ranging from one to five years for various "unlawful" forms of industrial action under sections 69(2), 72(3), 73(3-5), 74 and 87(3), including with respect to restrictions which are in violation of the principle of the right to strike;

-- the power of the court to limit the non-occupational activities or wind up an organization or federation which has devoted more funds and more of the time of its officers to campaigning on issues of public policy or public administration than to protecting the rights and advancing the interests of its members (section 42(2));

-- the power of the court to cancel or suspend registration of any organization taking strike action which is not in conformity with the Act, even for simple procedural violations (section 69(1)(b)).

-- obligation to consult the minister prior to international affiliation (section 41(1) of the Act).

The Committee trusts that the Government will take the measures necessary to amend these provisions of the Act in the very near future so as to bring them into full conformity with the provisions of the Convention and would once again point out that the technical assistance of the ILO is available in this respect.

[The Government is requested to provide full particulars to the Conference at its 86th Session.]

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the information provided in the Government's report as well as the statement made by the Government representative to the 1996 Conference Committee and the discussion which took place therein. The Committee also notes with interest that, at the request of the Government, an ILO direct contacts mission took place in the country from 30 September to 4 October 1996.

The Committee notes that a new Industrial Relations Act was adopted in 1996. While noting with interest that the teaching sector has been deleted from the list of essential services where strikes could be prohibited, as had been requested in previous comments, the Committee notes that this Act perpetuates most of the previous discrepancies between the legislation and the provisions of the Convention. Moreover, it points out that the 1996 Act contains new provisions which contravene even further some of the provisions of the Convention. In particular, the Committee would refer to section 40(3) of the Act which prohibits a federation or any of its officers from causing or inciting the cessation or slow-down of work or economic activity upon punishment of imprisonment contrary to Articles 3 and 6 of the Convention and the principle of the right to strike.

The Committee would also point out that the following discrepancies between the legislation and the provisions of the Convention have not been rectified in the new Act:

Article 2 of the Convention

- Non-recognition of the right of association of prison staff (section 91(c) of the Act);

- obligation upon workers to organize within the context of the industry in which they exercise their activity (section 27 of the Act);

- power of the Labour Commissioner to refuse to register a trade union if he or she is satisfied that an already registered organization is sufficiently representative (section 30(5) of the Act).

Article 3

- Limitation of the activities of federations to that of providing advice and services (section 40 of the Act);

- prohibition of the right to strike in the broadcasting sector (section 73(6) of the Act);

- power of the Minister to apply to the court to enjoin any strike or lockout if he or she considers that the "national interest" is threatened; and

- important restrictions of the rights of organizations to hold meetings and peaceful demonstrations (section 12 of the 1973 Decree on Meetings and Demonstrations).

Furthermore, the Committee notes that the new Act contains the following additional restrictions on the rights provided under this Article of the Convention:

- the prohibition of picketing directed at an establishment or undertaking not directly involved in a dispute (section 87(1)(e) of the Act);

- strike ballots conducted by the Commissioner of Labour and the requirement that a majority of the employees concerned approve such action (section 66(1)(b)) (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 170: the Committee considered that account should be taken only of the votes cast);

- penal sanctions have been introduced with respect to various "unlawful" forms of industrial action under sections 69(2), 72(3), 73(3-5), 74 and 87(3), including with respect to restrictions which are in violation of the principle of the right to strike;

- the power of the court to limit the non-occupational activities or wind up an organization or federation which has devoted more funds and more of the time of its officers to campaigning on issues of public policy or public administration than to protecting the rights and advancing the interests of its members (section 42(2));

- the power of the court to cancel or suspend registration of any organization taking strike action which is not in conformity with the Act, even for simple procedural violations (section 69(1)(b)).

The Committee cannot but regret that the Industrial Relations Act of 1996, taken as a whole, has actually diminished the protection to be afforded to workers' organizations under the Convention, despite the comments it has been making for over a decade. The Committee requests the Government to take the measures necessary to amend the Act in the very near future so as to bring it into full conformity with the provisions of the Convention and would point out that the technical assistance of the ILO is available in this respect.

[The Government is requested to provide full particulars to the Conference at its 85th Session.]

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the information provided by the Government in its report. Referring to section 12 of the Decree of 1973 which imposes substantial restrictions on the right of organizations to hold meetings and demonstrations, the Government indicates that this provision is null and void in practice since organizations have the right freely to hold meetings and that demonstrations have occurred on a frequent basis in the recent past. The Government further states that while this decree has not been repealed, it is considering amending section 12. The Committee requests the Government to keep it informed of any progress made in this matter as well as to transmit a copy of the amending text as soon as it is adopted.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the Government's reports. With reference to its previous comments, the Committee recalls that the discrepancies between the legislation and the Convention relate to the following points under the 1980 Industrial Relations Act:

Article 2 of the Convention

-- non-recognition of the right of association of prison staff (section 83(c));

-- obligation upon workers to organize within the context of the industry in which they exercise their activity (section 2(1) and (2));

-- power of the Labour Commissioner to refuse to register a trade union if he considers that the interests of the workers are fully or substantially represented by a trade union that has already been registered (section 23), even though, by virtue of section 24(1)(d) an appeal may be made against such a refusal before the Labour Tribunal;

-- obligation for an occupational organization or federation to obtain authorization before affiliating with any international organization (section 34(1)).

Article 3 of the Convention

-- prohibition on federations from carrying out political activities and limitation of their activities to providing advice and services (section 33);

-- prohibition of the right to strike in certain sectors or services, including, in particular, the postal, radio and teaching sectors (section 65(6));

-- power of the Minister to refer any dispute to compulsory arbitration if he considers that a current or pending strike constitutes a threat to the national interest (section 63(1)).

The Committee notes the information provided by the Government according to which, following technical assistance from the ILO, a draft Industrial Relations Bill has been submitted to the Labour Advisory Board (LAB) which will soon look into the matter. The Government also indicates that the recommendations made by the Committee and the Wiehahn Commission will be taken into consideration when the final draft is under discussion.

Recalling that these draft amendments to the Industrial Relations Act were submitted to the LAB for perusal in 1992, the Committee requests the Government to ensure that these amendments to the Act are adopted in the near future. It requests the Government to keep it informed of any developments in this respect.

The Government also states that it is considering the communication of the World Confederation of Organizations of the Teaching Profession (WCOTP) dated 15 December 1992, in which the WCOTP asks the ILO to intervene with the Swazi authorities in order to obtain the repeal of the provision in the Industrial Relations Act of 1980 which classifies teaching as an essential service.

The Committee recalls that the ILO supervisory bodies have held that a strike in the teaching sector does not endanger the life, personal safety or health of the whole or part of the population and therefore cannot be considered to be an essential service and would ask the Government to ensure that the said provision is repealed in conformity with freedom of association principles. It requests the Government to keep it informed of developments in this respect.

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

The Committee notes the Government's report. The Committee recalls that, for a number of years, its previous comments concerned discrepancies between the Convention and the 1980 Industrial Relations Act and the 1973 Decree on Meetings and Demonstrations.

Article 2 of the Convention

- non-recognition of the right of association of prison staff (section 83(c) of the Act);

- obligation upon workers to organize within the context of the industry in which they exercise their activity (section 2(1) and (2) of the Act);

- power of the Labour Commissioner to refuse to register a trade union if he considers that the interests of the workers are fully or substantially represented by a trade union that has already been registered (section 23), even though by virtue of section 24(1)(d) an appeal may be made against such a refusal before the Labour Tribunal;

- obligation for an occupational organization or federation to obtain authorization before affiliating with any international organization (section 34(1)).

Article 3 of the Convention

- prohibition on federations from carrying out political activities and limitation of their activities to providing advice and services (section 33);

- prohibition of the right to strike in certain sectors or services, in particular in the postal, radio and teaching sectors (section 65(6) of the Act);

- power of the Minister to refer any dispute to compulsory arbitration if he considers that a current or pending strike constitutes a threat to the national interest (section 63(1));

- important restrictions of the rights of organizations to hold meetings and peaceful demonstrations (section 12 of the 1973 Decree).

The Committee notes with interest the information provided by the Government in its report that a draft Industrial Relations Bill, which takes into consideration the comments of the Committee of Experts, has been elaborated and was submitted to Parliament in 1995. The draft has been approved by the National Assembly and needs to be submitted to the Senate. In addition a draft amendment of the Employment Act was also elaborated in 1995. It will have to be discussed in a tripartite commission before being submitted to the competent authorities. The Government adds that it will provide copies of these two texts as soon as they are 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 transmit, in its next report, copies of the two drafts in question, even if they have not yet been adopted, so as to enable the Committee to examine their conformity with the Convention and, if they have already been adopted, it requests the Government to transmit them in their final version.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

In its previous comments, the Committee noted with interest that the courts in Swaziland had recognized the right of trade unions to hold meetings for trade union purposes without prior authorization from the police, whereas section 12 of the Decree of 1973 imposes substantial restrictions on the right of organizations to hold meetings and demonstrations. The Committee asks the Government to consider amending section 12 to take account of this ruling with regard to trade unions.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the Government's report. With reference to its previous comments, and in particular its detailed observation of 1990, the Committee recalls that the discrepancies between the legislation and the Convention related to the following points under the 1980 Industrial Relations Act:

Article 2 of the Convention

- non-recognition of the right of association of prison staff (section 83(c));

- obligation upon workers to organize within the context of the industry in which they exercise their activity (section 2(1) and (2));

- power of the Labour Commissioner to refuse to register a trade union if he considers that the interests of the workers are fully or substantially represented by a trade union that has already been registered (section 23), even though, by virtue of section 24(1)(d) an appeal may be made against such a refusal before the Labour Tribunal;

- obligation for an occupational organization or federation to obtain authorization before affiliating with any international organization (section 34(1)).

Article 3 of the Convention

- prohibition on federations from carrying out political activities and limitation of their activities to providing advice and services (section 33);

- prohibition of the right to strike in certain sectors or services, including, in particular, the postal, radio and teaching sectors (section 65(6));

- power of the Minister to refer any dispute to compulsory arbitration if he considers that a current or pending strike constitutes a threat to the national interest (section 63(1)).

The Committee notes the Government's statement that following technical assistance from the ILO, draft amendments to the Industrial Relations Act have been submitted to the Labour Advisory Board for perusal and comments. The Government has undertaken to take into consideration previous observations made by the Committee when discussing the final draft.

The Committee requests the Government to indicate any progress in ensuring full compliance of national legislation and practice with the Convention in its next report.

The Committee also takes note of the communication of the World Confederation of Organizations of the Teaching Profession (WCOTP) dated 15 December 1992 which, on behalf of its affiliate, the Swaziland National Association of Teachers (SNAT), asks the ILO to intervene with the Swazi authorities in order to obtain the repeal of the provision in the Industrial Relations Act of 1980 which classifies teaching as an essential service. The WCOTP adds that the supervisory bodies dealing with freedom of association in the ILO have confirmed that the activities of teachers could not be included in those activities which the ILO considers to be essential services.

The Committee requests the Government to communicate in its next report any comments that it may wish to make on the communication of the WCOTP.

The Committee is also addressing a direct request to the Government on other points.

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

In its previous comments, the Committee noted with interest that the courts in Swaziland had recognised the right of trade unions to hold meetings for trade union purposes without prior authorisation from the police, whereas section 12 of the Decree of 1973 imposes substantial restrictions on the right of trade unions to hold meetings and demonstrations. The Committee requested the Government to indicate the measures that had been taken or were contemplated to amend section 12 to take account of this ruling, of which it has now received a copy. Since it has not received a reply from the Government on this point, the Committee reiterates its request and hopes that the Government will indicate the measures that have been taken in this respect in its next report.

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

The Committee notes the Government's report. With reference to its previous comments, and in particular its detailed observation of 1990, the Committee recalls that the discrepancies between the legislation and the Convention related to the following points under the 1980 Industrial Relations Act:

Article 2 of the Convention

- non-recognition of the right of association of prison staff (section 83(c));

- obligation upon workers to organise within the context of the industry in which they exercise their activity (section 2(1) and (2));

- power of the Labour Commissioner to refuse to register a trade union if he considers that the interests of the workers are fully or substantially represented by a trade union that has already been registered (section 23), even though, by virtue of section 24(1)(d) an appeal may be made against such a refusal before the Labour Tribunal;

- obligation for an occupational organisation or federation to obtain authorisation before affiliating with any international organisation (section 34(1)).

Article 3 of the Convention

- prohibition on federations from carrying out political activities and limitation of their activities to providing advice and services (section 33);

- prohibition of the right to strike in certain sectors or services, including, in particular, the postal, radio and teaching sectors (section 65(6));

- power of the Minister to refer any dispute to compulsory arbitration if he considers that a current or pending strike constitutes a threat to the national interest (section 63(1)).

The Committee notes the Government's statement that it is taking measures to propose amendments to the competent authorities, and its undertaking to keep the Committee informed of developments in this respect.

The Committee trusts that the Government will take account of the above comments and its previous observations when reviewing its legislation so as to give effect to the Convention, with the technical assistance of the ILO. It requests the Government to transmit copies of any legislative amendments in this regard as soon as they have been adopted.

The Committee is also addressing a direct request to the Government on the right of workers' organisations to hold meetings for trade union purposes without prior authorisation from the police.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee takes note of the Government's report and recalls that for several years its comments have addressed the following points.

Article 2 of the Convention

1. Exclusion of prison staff from the enjoyment of the right of association (section 83(c) of the Act of 1980);

2. obligation upon workers to organise within the context of the industry in which they exercise their activity (sections 2(1) and (2) of the Act of 1980);

3. power of the Labour Commissioner to refuse to register a trade union if he is of the opinion that the interests of the workers are fully, or substantially, represented by a trade union that has already been registered (section 23(3) of the Act of 1980), even though, by virtue of section 24(1)(d) an appeal may be made against such a refusal before the Labour Tribunal;

4. obligation for an occupational organisation or federation to obtain authorisation before affiliating with any international organisation (section 34(1) of the Act of 1980).

Article 3 of the Convention

5. Prohibition upon federations to carry on political activities and limitation of their activities to providing advice and services (section 33 of the Act of 1980);

6. prohibition of the right to strike in essential services, including, in particular, the postal, radio and teaching sectors (section 65(6) of the Act of 1980);

7. power of the Minister to refer any dispute to compulsory arbitration if he is of the opinion that a current or pending strike constitutes a threat to the national interest (section 63(1) of the Act of 1980).

1. With regard to prison staff, the Government stresses that their exclusion from the enjoyment of the right of association is due to the fact that their function is similar to that of the police and that they are part of the security forces.

While noting this statement, the Committee points out that the functions performed by this category of workers are not such as to justify their exclusion from the right to organise under Article 9 of the Convention which applies only to the police and the armed forces. Consequently, they should be able to group together in an association in order to defend their interests. However, the right to establish associations does not exclude the possibility of considering the functions performed by these persons as an essential service and measures may therefore be taken to restrict, inter alia, their right to strike. The Committee therefore asks the Government to indicate the measures taken or under consideration to grant prison staff the right of association.

2. and 3. The Committee notes the Government's statement that the workers have never complained that they are free to organise only within the industry in which they exercise their activities, and that they have the possibility of expressing any discontent before institutions such as the Labour Advisory Board.

Furthermore, the Committee notes from the Government's report that a decision by the Labour Commissioner to refuse to register a trade union on the grounds that a union that has already been registered fully or substantially represents the interests of the workers must be based on a bona fide opinion which may also be appealed.

The Committee wishes to remind the Government that, although the obligation to group together in branch unions has not to date been contested by the workers and the Labour Commissioner's powers, as the Government stresses, are not absolute but discretionary, these provisions are liable, nonetheless, to restrict the right of workers to establish organisations of their own choosing, which is contrary to Article 2 of the Convention.

4. The Committee notes that the Government reiterates that the purpose of requiring authorisation from the authorities for workers' (or employers') organisations to become members of international organisations is to ensure that the workers' or employers' organisations do not affiliate to undesirable international organisations.

The Committee recalls that workers' and employers' organisations enjoy the right to affiliate to international organisations without previous authorisation, under Articles 5 and 6 of the Convention. It also requests the Government to state whether it has already refused an application to affiliate to an international organisation.

5. With regard to the restrictions imposed by law on the activities of federations, the Committee notes that the Government is currently holding consultations on this matter.

The Committee recalls that, under Article 6 of the Convention, federations enjoy identical rights to those of lower-level organisations. Accordingly, they must be able to express their opinion publicly on the Government's economic and social policy, as the fundamental purpose of trade unions, federations and confederations should be to ensure development of the economic and social well-being of all workers.

6. and 7. With regard to the provisions concerning compulsory arbitration, which allow the authorities to prevent strikes or to end them if the national interest is threatened, the Government indicates that their purpose is to promote peaceful negotiation between the social partners. In the Government's opinion, although strikes are the only economic weapon available to workers, at the same time, they are economically detrimental to the nation as a whole.

While noting these statements, the Committee recalls the right to resort to strikes is one of the essential means available to workers' organisations for defending the interests of their members. However, under the Convention, this right can be restricted or prohibited: (a) in the case of public servants acting in their capacity as agents of the public authority; (b) in essential services in the strict sense of the term, namely services whose interruption would endanger the life, personal safety or health of the whole or part of the population; (in the opinion of the Committee, this restriction would become meaningless if the legislation defined essential services too broadly; it is for this reason that, in its previous observation, the Committee stressed that the post, radio and teaching sectors, in which strikes are prohibited, could not be considered essential services in the meaning of the Committee's definition); (c) in the event of an acute national crisis for a limited period.

Thus, in the light of the foregoing comments, section 63(1) of the Act of 1980 which allows a dispute to be referred to compulsory arbitration at the discretion of the authorities when the national interests are at stake, confers powers on the authorities which are so broad as to be liable to restrict the right of workers' organisations to resort to strikes as a means of defending the interests of their members, which is contrary to Articles 3 and 10 of the Convention. In the Committee's opinion, the prohibition of the right to strike in essential services (section 65(6) of the Act of 1980) should be restricted to services whose interruption would endanger the life, personal safety or health of the whole or part of the population.

The Committee notes that, according to the Government, proposals to amend certain sections of the Act have been made and some of the discrepancies will be eliminated.

The Committee trusts that measures will be taken in the near future to amend the provisions of the Act to take account of its comments.

In addition, in its last observation, the Committee noted with interest that the Labour Tribunal had recognised the right to hold meetings for trade union purposes without prior authorisation from the police, whereas section 12 of the Decree of 1973 imposes substantial restrictions on the right of trade unions to hold meetings and demonstrations.

In the absence of any information on this point, the Committee requests the Government to indicate the measures taken or envisaged to amend section 12 of the Decree of 1973 to take account of the above ruling.