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Comments adopted by the CEACR: Eswatini

Adopted by the CEACR in 2022

C094 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 2 of the Convention. Inclusion of labour clauses in public contracts. The Committee notes the information provided by the Government in response to its previous comments. In particular, it notes that tripartite consultations between the Government and social partners concerning the draft Employment Bill, 2017, which took place within the Labour Advisory Board (LAB), were completed in July 2019. The draft Bill was subsequently reviewed by the ILO, whose comments were taken into consideration in the final draft of the Bill. The Government adds that the final draft Bill will be forwarded to the Cabinet for approval and to the Parliament for adoption. With regard to the implementation of the Convention, the Government reports that the Convention is effectively implemented in all public procurement processes and that the Eswatini Public Procurement Regulatory Authority (ESPPRA) has developed a Standard Tendering Document for Procurement of Goods in respect of all national and international open tendering. It further indicates that public contracts in the country contain clauses requiring the tenderer to comply with basic labour law. The Committee notes that Part XIII of the draft Employment Bill, 2017 contains substantive provisions regarding the obligation established under Article 2(1) of the Convention concerning the insertion of labour clauses in public procurement contracts. The Committee notes that section 126 of the draft Employment Bill stipulates that “Every public contract is deemed to include and to incorporate the provisions contained in this Part as if they were expressly set out as conditions to be observed and performed on the part of either or both of the parties to the contract”, whereas section 127 requires that contractors “pay rates of wages and observe hours and conditions of employment (referred to as established rates and conditions) that are not less favourable than those established by any collective agreement covering a substantial proportion of employees and employers in the trade or industry concerned in the contract”. On the other hand, the Committee notes that the examples of public contracts provided by the Government in its report do not contain labour clauses of the type required by Article 2. The Committee considers that the provisions of Part XIII of the draft Employment Bill, 2017 are aligned with the core requirements of Article 2 of the Convention. The Committee requests the Government to notify the Office once the draft Bill is adopted and to provide a copy. In addition, the Committee requests the Government, once the draft Bill is adopted, to provide detailed updated information on the manner in which its provisions are applied in practice to ensure the effective implementation of Article 2 of the Convention, in all public contracts to which the Convention is applicable.
Article 4(a)(iii). Posting of notices. The Committee notes the information provided by the Government in reply to its previous request.

Adopted by the CEACR in 2020

C087 - 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.

C087 - 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.

C098 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the observations of the Trade Union Congress of Swaziland (TUCOSWA) received on 30 August 2020, concerning: (i) allegations of restrictions to the right to collective bargaining in public enterprises, both in law – section 10(1) of the Public Enterprise (control and monitoring) Act – and practice; and (ii) the refusal of a pulp and paper company to pay termination benefits to workers dismissed, despite a collective agreement. Recalling that employees of public enterprises should be able to negotiate collectively their wage conditions, the Committee requests the Government to send its comments with respect to the TUCOSWA’s observations.
The Committee further notes the observations of Education International received on 20 September 2019 on discriminatory measures affecting the President of the Swaziland National Association of Teachers (SNAT), and the reply of the Government thereto. In this respect, the Committee also refers to its comments under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.87), whereby it requests the Government to reply to allegations from TUCOSWA on anti-union measures against union leaders, including of the SNAT.
Article 4. Promotion of collective bargaining mechanisms. In its previous comments, the Committee requested the Government to continue to provide information on steps taken to promote collective bargaining in all sectors, including measures taken to implement section 42 of the Industrial Relations Act (IRA) on the recognition as collective employee representatives, as well as information on the number of collective agreements signed and the number of workers covered. The Committee notes the indication that most employers grant recognition agreements to registered workers’ organisations without need to resort the matter to arbitration under the provisions of section 42 of the IRA. This is evidenced by the low number of case load at the Conciliation, Mediation and Arbitration Commission (CMAC) wherein recognition disputes ought to be reported (41 applications or disputes for recognition filed between 2017 and 2019). Furthermore, the Committee notes that while it provides statistics on the number of collective agreements registered by the Industrial Court from 2017 to 2019 (22 in 2017, 26 in 2018 and 16 up to 31 August 2019), the Government informs of the low compliance with the provisions of section 55(2) of the IRA whereby signed collective agreements shall be submitted to the Industrial Court for registration with a copy to the Commissioner of Labour. The Government considers that this failure to comply results in a number of collective agreements not known to the office of the Commissioner of labour, and indicates its intention to sensitize the social partners about the importance of complying with the requirements under section 55(2) of the IRA through regular communications at the national radio. The Committee invites the Government to inform about any fluctuation in the number of registered collective agreements as a result of the sensitization campaign. It also invites the Government to provide information on any other measures taken to promote collective bargaining and to continue providing information on the number of collective agreements signed, the sectors and the number of workers covered.

Adopted by the CEACR in 2019

C100 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Articles 1 and 2 of the Convention. Addressing the gender pay gap. Referring to its previous comments on the existence of a large gender wage gap in industries with higher compensation and the concentration of women in low-paid jobs in the informal economy, the Committee notes the Government’s indication that several policy measures have been adopted to promote gender equality and afford women increased opportunities, in particular in the framework of the Poverty Reduction Strategy and Action Plan (PRSAP) of 2006, as well as the draft Strategy for Sustainable Development and Inclusive Growth of 2016. However, the Government indicates also that, some of these measures are still at their early stages, due to resource constraints. In addition to the information highlighted in its direct request under the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Committee notes that, according to its last Labour Force Survey (2013–14), women employed in the same occupational groups than men only received, on average, 60 per cent of men’s median monthly earnings. In light of the substantial wage disparities between men and women in all occupational categories and the lack of legislation that fully reflects the principle of the Convention, the Committee urges the Government to strengthen its efforts to take proactive measures, including in collaboration with employers and workers’ organizations, to raise awareness, monitor, promote and enforce the application of the Convention. While noting the resource constraints, it asks the Government to take measures to address the gender pay gap by identifying and addressing the underlying causes of pay differentials, such as vertical and horizontal job segregation and gender stereotypes, covering both formal and informal economy. It asks the Government to provide updated statistical information on the earnings of men and women in all the sectors and occupations of the economy, both in the public and private sectors, as well as in the informal economy.
Article 2. Minimum wages. In its previous comments, the Committee asked the Government to provide information on specific job evaluation methods used by wage councils, and to indicate how it is ensured that such methods are free from gender bias and do not result in the undervaluation of jobs predominately undertaken by women. The Committee notes the Government’s repeated indication, in its report, that minimum wages are set through negotiations within the various tripartite wage councils which do not make differentiations based on sex. The Committee wishes to recall once again that, the lack of an explicit differentiation between men and women in wage orders is not sufficient to ensure that there is no gender bias in the process of determining minimum wages, and that special attention is needed in the design or adjustment of sectoral minimum wage schemes to ensure that the rates fixed are free from gender bias, and in particular that skills considered to be “female” are not undervalued (see the 2012 General Survey on the fundamental Conventions, paragraphs 683, 695 and 701). In light of the substantial wage disparities between men and women in all occupational categories noted by the United Nations Development Programme (UNDP), and mentioned in its observation, the Committee asks the Government to provide information: (i) on the measures adopted by the tripartite wage councils to ensure that minimum wage rates are fixed, based on objective criteria, free from gender bias, such as qualifications, skills, effort, responsibilities and conditions of work and that work in sectors with a high proportion of women is not being undervalued in comparison with sectors in which men are predominantly employed; and (ii) on the rates set by the tripartite wage councils as well as statistical information, disaggregated by sex, on the distribution of women and men employed in the various sectors of the economy and industries and the corresponding earnings. The Committee further asks the Government to provide information on the measures taken to raise awareness of employers’ and workers’ organizations regarding the issue of wage disparities between men and women on how they can be reduced and to indicate how the tripartite wage councils promote equal remuneration for men and women for work of equal value.
Article 3. Objective job evaluation. Referring to its previous comments on the measures taken to ensure concretely that job evaluation methods used in the private sector are gender bias free, the Committee notes the Government’s repeated assertion that its role is very limited in this regard as there is currently no overreaching legislation concerning job evaluation and that methods for job evaluation used in the private sector may differ from one employer to the other. In this regard, the Committee wishes to recall that objective job evaluation is key to achieving the objectives of the Convention. The obligations to “promote” and “ensure” the application of the principle of equal remuneration for men and women for work of equal value may be fulfilled in various different ways including by, for example, the formulation of guidelines for establishing gender-neutral job classification or non-sexist checklist for the evaluation and classification of jobs. Stressing that the Convention can be implemented at the enterprise, sectoral or national level, in the context of collective bargaining, as well as through wage-fixing mechanisms (see General survey, 2012, paragraph 701), the Committee asks the Government to provide updated information on any job evaluation exercise undertaken in the private sector, indicating the criteria used and the measures taken to ensure that men and women receive equal remuneration for work of equal value. Recalling further that the Convention also applies to the public sector and that the concept of equal value requires some method of measuring and comparing the relative value of different jobs, the Committee asks the Government to indicate how it ensures in practice that job evaluation methods used in the public sector are gender bias free.
Article 4. Cooperation with employers’ and workers’ organizations. In light of the substantial wage disparities between men and women in all occupational categories, observed in practice by UNDP and mentioned above, the absence of a proper definition of work of equal value as well as of an overarching legal framework enshrining the principle of the Convention since its ratification, the Committee recalls that in order to give effect to the principle of the Convention, there is a need to adopt a range of proactive measures, adapted to the national context, to accomplish real progress in attaining equal remuneration for men and women for work of equal value. The Committee asks the Government to provide information on any cooperation undertaken with employers’ and workers’ organizations for the purpose of giving effect to the provisions of the Convention.

C100 - Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Legislative developments. The Committee recalls that the Government over a period of ten years has repeatedly indicated that a Bill was being prepared in order to fully reflect the principles set out in the Convention. The Committee notes the Government’s indication in its report that section 14 of the Employment Bill would amend section 96 of the Employment Act of 1980 which provides for “equal pay for equal work”, by defining “work of equal value” as meaning “work in which the duties and services to be performed require similar or substantially similar levels of qualification, experience, skill, effort, responsibility which is performed under similar or substantially similar working conditions”. In this regard, the Committee draws the Government’s attention to the fact that such definition could unduly restrict the scope of comparison of jobs performed by men and women and recalls that the concept of “work of equal value” as provided for under the Convention is fundamental to tackling occupational gender segregation in the labour market. This concept permits a broad scope of comparison including, but going beyond, equal remuneration for “equal”, “the same”, or “similar” work, and also encompassing work of an entirely different nature, which is nevertheless of equal value (see General Survey on the fundamental Conventions, 2012, paragraphs 672–675). The Committee asks the Government to take steps without further delay towards the adoption of the Employment Bill. It trusts that the Government will seize this opportunity to ensure that any new legislation will fully reflect the principle of equal remuneration for men and women for work of equal value enshrined in the Convention, allowing for the comparison not only of work that involves similar or substantially similar qualifications, skills, effort, responsibilities and conditions of work but also of work of equal value.
The Committee is raising other matters in a request addressed directly to the Government.

C111 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. The Committee notes with interest the adoption of the Sexual Offenses and Domestic Violence (SODV) Act No. 15 of 2018 which entered into force on 1 August 2018, which aims to address gender-based violence and to protect against sexual harassment with penalties of a fine up to 25,000 eSwatini lilangeni (SZL) (US$1,800) or ten years’ imprisonment or both. It further notes the Government’s indication that a policy on sexual harassment at the workplace is being developed, as a result of the 2010 National Gender Policy (NGP), but that due to resource constraints it has not yet been finalized. The Committee notes that, in its 2017 concluding observations, the United Nations Human Rights Council (UNHRC) expressed concern at reports of widespread violence against women and at the fact that relevant officials lack specific training on gender-based violence and recommended that the Government ensure that all cases of sexual and gender-based violence are thoroughly investigated, that perpetrators are prosecuted and, if convicted, are punished with appropriate sanctions, and that victims receive full reparation (CCPR/C/SWZ/CO/1, 23 August 2017, paragraph 26). The Committee hopes that the SODV Act will have a positive impact in fighting against sexual harassment in the workplace. The Committee asks the Government to provide information on: (i) any measures taken, following the adoption of the SODV Act to prevent and address all forms of sexual harassment (quid pro quo and hostile working environment sexual harassment) in education institutions and at workplaces, including in the informal economy, and to increase public awareness regarding sexual harassment, as well as the procedures and mechanisms available for an aggrieved party to seek redress, including in the framework of the 2010 NGP or otherwise; and (ii) the number of complaints concerning cases of sexual harassment lodged, penalties imposed and compensation awarded.
Article 1(1)(b). Discrimination based on additional grounds. Disability. The Committee welcomes the adoption of the Persons with Disabilities Act No. 16 of 2018, entered into force on 1 August 2018, which protects the rights of persons with disabilities, including their access to education and employment. Noting that according to the last available census (2011), 83.7 per cent of persons with disabilities were economically inactive, it welcomes the fact that the National Disability Plan of Action (NDPA) for 2015–20 set as a specific objective to ensure equal participation in the economic development of persons with disabilities through vocational training and skills development and access to the labour market. The Committee asks the Government to provide information on the application of the Persons with Disabilities Act in practice. It further asks the Government to provide information on the measures taken to promote vocational training and education, as well as employment of persons with disabilities, including in the framework of the NDPA for 2015–20 or otherwise, and the results achieved. The Committee asks the Government to provide updated statistical information on the employment rate of workers with disabilities, disaggregated by sex.
Articles 2 and 3. Public service. The Committee notes the adoption on 22 February 2018 of the new Public Service Act No. 5/2018, and more particularly of section 4 which provides that the administration and operation of the public service shall be governed by the public service values, which are attached to the main Act and include: “to be a non-discriminatory employer, that makes employment decisions on the basis of merit and recognizes the aims and aspirations of its employees, regardless of gender, marital status, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion, age, disability or HIV and AIDS status” (subparagraph (f) of the first schedule). The Committee however observes that no explicit reference is made to discrimination in the sections of the main Act that deal with appointment, mobility or termination of employment of public officers. It further notes that, in its last concluding observations, the UNHRC expressed concern at the lack of equal representation of women in the public sector, particularly in decision-making positions (CCPR/C/SWZ/CO/1, 23 August 2017, paragraph 24). The Committee asks the Government to provide information on the application of section 4 of the Public Service Act No. 5/2018, in practice, as well as on any activities undertaken to raise awareness of this provision, and on any case of discrimination, direct or indirect, in the public sector brought before the competent authorities. It further asks the Government to provide information on any steps taken to promote equal employment opportunities in the public service and their impact, including by providing updated statistical information on the number of public officers, disaggregated by sex, category and position.
Equality of opportunity and treatment between women and men. The Committee notes the Government’s indication that several policy measures have been adopted to promote gender equality and afford women increased opportunities, in particular in the framework of the Poverty Reduction Strategy and Action Plan (PRSAP) of 2006, as well as the draft Strategy for Sustainable Development and Inclusive Growth of 2016. The Committee notes that the 2010 National Gender Policy (NGP) acknowledges that the society is characterized by inequality between women and men in different areas mainly as a result of cultural practices, and sets as objectives: (i) to ensure that girls and boys have equitable access to education; (ii) to prevent and eliminate practices that contribute to early dropout from school, especially for girls mainly as a result of teenage pregnancy; (iii) to provide the same training opportunities for men and women; (iv) to ensure that women and girls have equitable opportunities and access to, and control over, productive resources such as land and credit, and opportunities for self-employment; and (v) to promote the full participation of women in all socio-economic activities. It notes that the NGP also provides for commitments to sensitize communities on gender issues that may inhibit women from occupying leadership positions, with the objective of increasing women’s participation in decision-making positions. The Government adds that some measures have been elaborated in this framework but that due to resource constraints they are still at their early stages. The Committee notes that, according to the United Nations Development Programme (UNDP), in 2017, the participation rate of women in the labour market remained substantially lower than that of men (42.7 per cent compared to 67.2 per cent, respectively) with a gender inequality index value of 0.569, ranking Eswatini 141 out of 160 countries. The Committee notes with concern that according to the Labour Force Survey (LFS) 2013–14 forwarded by the Government, 54.7 per cent of women are concentrated in the three lowest paid occupational categories, while only 3.4 per cent of them are employed in management positions. The LFS also indicates that gender occupational segregation is evident from the value of 0.25 for Duncan’s Index of dissimilarity, and that the majority of women are unemployed or employed in the informal economy. The Committee further notes that in its 2017 concluding observations, the Human Rights Committee (HRC) expressed concern about domestic and customary laws as well as cultural practices which perpetuate inequality between men and women, as well as at the lack of equal representation of women in the public and private sectors, particularly in decision-making positions (CCPR/C/SWZ/CO/1, 23 August 2017, paragraph 24). In light of the lack of legislation that fully reflects the principles of the Convention, the Committee urges the Government to strengthen its efforts to take proactive measures, including in collaboration with employers’ and workers’ organizations, to raise awareness, to monitor, and to promote and enforce the application of the Convention. While noting the resource constraints, it asks the Government to take measures to improve equality of opportunity and treatment between men and women in employment and occupation by effectively enhancing women’s economic empowerment and access to decision-making positions, as well as by encouraging girls and women to choose non-traditional fields of study and professions while reducing early dropout from school for girls. The Committee asks the Government to provide information on the specific measures effectively implemented to this end, including in the framework of the National Gender Policy and the Poverty Reduction Strategy and Action Plan, as well as through the adoption and implementation of the draft Strategy for Sustainable Development and Inclusive Growth. It asks the Government to provide updated statistical information on the participation of men and women in education, training, employment and occupation, disaggregated by occupational categories and positions, both in the public and private sectors, as well as in the informal economy.
General observation of 2018. The Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction, which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population. The Committee draws the Government's attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.
Equality of opportunity and treatment irrespective of HIV status. In its previous comments, the Committee requested the Government to provide information on the measures taken to mandate labour inspectors to promote the establishment of workplace-wellness policies, as well as information on the follow-up to the pilot inspection. The Committee notes the Government’s statement, in its report, that when conducting inspections, labour inspectors are required to inquire on whether the inspected workplace has incorporated a workplace wellness policy for its employees and, if necessary, advice and assist employers to this end. The Government adds that other employees’ wellness programmes are also implemented, in particular in the public sector. The Committee notes the adoption of the new National Multi-Sectoral Strategic Framework for HIV and AIDS (NSF) 2018–23, which aims in particular to address HIV related stigma and discrimination. It notes in its last concluding observations that the UNHRC remained concerned at the persistence of stigma and discrimination against persons living with HIV and AIDS, as well at the absence of laws prohibiting discrimination against such persons (CCPR/C/SWZ/CO/1, 23 August 2017, paragraph 20). Noting the Government’s statement that section 16 of the Employment Bill would prohibit discrimination “against real or perceived HIV/AIDS status”, the Committee reiterates its request that the Government provide information on the progress of this Bill and to provide information on any new legislation adopted. It asks the Government to provide information on the steps taken to address HIV related discrimination in employment and occupation, including in the framework of workplace-wellness policies and the NSF 2018–23, as well as on their impact.
Enforcement. The Committee notes the Government’s indication that, between 2010 and 2015, no case of discrimination was reported to the Conciliation, Mediation and Arbitration Commission (CMAC). It notes, however, that during this period, according to the information provided by the Government, among the cases received by the CMAC, more than 60 per cent referred to unfair dismissal, more than 10 per cent referred to unfair terms and conditions of employment and more than 5 per cent referred to unpaid wages, which are cases that could relate to discrimination in employment and occupation. Recalling that no society is free from discrimination and that constant efforts are needed to take action against it, the Committee wishes to stress that where no cases or complaints are being lodged, this may indicate a lack of an appropriate legal framework, lack of awareness of rights, lack of confidence in, or absence of practical access to procedures, or fear of reprisals (see General Survey on the fundamental Conventions, 2012, paragraph 870). Consequently, the Committee asks the Government to take appropriate measures to raise public awareness on the provisions of the Convention, as well as on the procedures and remedies available, and provide information on any activities undertaken to this end. It further asks the Government to provide detailed information on any cases referred to the Conciliation, Mediation and Arbitration Commission, including complaints concerning discrimination, detected by or reported to labour inspectors, the CMAC, the courts or any other competent authorities, as well as any decision issued in this regard, disaggregated by the sex of the victims.

C111 - Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Legislative developments. The Committee recalls that the Government over a period of ten years has repeatedly indicated that a Bill was being prepared in order to fully reflect the principles set out in the Convention. The Committee notes the Government’s indication in its report that section 16 of the Employment Bill will complement section 29 of the Employment Act of 1980, by providing for additional grounds of discrimination, such as gender, family responsibilities, ethnic origin, pregnancy or intended pregnancy, sexual orientation, political opinion, social origin, health status, real or perceived HIV/AIDS status, age or disability, conscience and belief. The Committee asks the Government to take steps without further delay towards the adoption of the Employment Bill. It trusts that the Government will seize this opportunity to prohibit direct and indirect discrimination based on at least all the grounds set out in Article 1(1)(a) of the Convention, concerning all stages of the employment process, while also ensuring that the additional grounds already enumerated in the Employment Act of 1980 are preserved in the new legislation.
The Committee is raising other matters in a request addressed directly to the Government.

C144 - Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Articles 2 and 3 of the Convention. Criteria for determining the most representative employers’ and workers’ organizations. The Committee recalls its 2017 observation, in which it noted the Government’s indication that one of the key challenges affecting social dialogue in Eswatini was the absence of clear criteria for determining the most representative employers’ and workers’ organizations for purposes of the Convention. On the question of the establishment of clear and transparent criteria for determining the most representative organizations of employers and workers, the Government indicates that the definition of such criteria was left to the social partners. Therefore, it was agreed that the workers’ federations (the Trade Union Congress of Swaziland (TUCOSWA) and the Federation of Swaziland Trade Unions (FESWATU)) and the employers’ federations (Business Eswatini (BE) and the Federation of the Swazi Business Community (FESBC)), would hold their own bilateral discussions on this issue and inform the Government of the outcomes. Subsequently, the workers’ federations signed a Memorandum of Understanding (MoU) on this issue on 21 February 2019. The employers’ federations have not yet informed the Government of the outcome of their bilateral discussions in this regard. The Committee notes that the Government provides a copy of the MoU signed by the workers’ federations. The Committee invites the Government to provide updated information in its next report on developments in relation to this issue.
Article 5(1). Effective tripartite consultations. The Committee welcomes the information provided by the Government relative to the two main tripartite social dialogue institutions established in Eswatini: the Labour Advisory Board (LAB) and the National Steering Committee on Social Dialogue (NSCSD). The Committee notes that, pursuant to section 24(1) of the Industrial Relations Act, No. 1 of 2000, LAB is mandated to, among other things, carry out tripartite consultations in respect of all of the matters relative to international labour standards enumerated under Article 5(1) of the Convention. With regard to the frequency of consultations, section 25(4) of the Industrial Relations Act provides that LAB shall convene four times a year, or upon presentation of a petition by any six members of LAB. The Government indicates, however, that over the years, some overlaps occurred with regard to the functions of LAB and the NSCSD. In particular, some of the issues that pertain to the mandate of LAB pursuant to Part III of the Industrial Relations Act, such as consultations on reports to be submitted to the ILO and matters relating to preparations for the annual International Labour Conference, were being tabled for discussion before the NSCSD instead of LAB. This situation gave rise to confusion regarding the functioning of these two national social dialogue institutions. This issue was raised by the social partners during a special social dialogue meeting held on 10 December 2018 in the Ministry of Labour and Social Security. At the initiative of the tripartite constituents, an Ad Hoc Tripartite Working Committee on Social Dialogue was created to study options for strengthening the national social dialogue structures and clarify the functions of the two tripartite bodies to avoid any similar confusion in future. The Government adds that, to improve the practical implementation of the Convention, the Ad Hoc Tripartite Working Committee will collaborate with the ILO-Pretoria office. The Committee notes the information provided by the Government regarding the activities of LAB and the NSCSD; however, it notes that the report contains no information on tripartite consultations relating to the matters required under Article 5(1) of the Convention. The Committee therefore reiterates its request that the Government provide detailed information on the content and outcome of the tripartite consultations held in Labour Advisory Board (LAB) on the matters relative to international labour standards covered by the Convention under Article 5(1)(a)–(e). It further requests the Government to communicate updated information in its next report on developments with regard to the clarification of the mandates and activities of LAB and the National Steering Committee on Social Dialogue, as well as in respect to its efforts to strengthen and promote social dialogue more generally.
Article 5(1)(c) and (e). Prospects of ratification of unratified Conventions and proposals for the denunciation of ratified Conventions. The Government refers to a communication of 9 April, 2019 from the Director of International Labour Standards, drawing its attention to the impact that the submission of four outdated Conventions, notably the Underground Work (Women) Convention, 1935 (No. 45), to the International Labour Conference for abrogation in 2024, will have on the Kingdom of Eswatini, considering the country’s ratification status. The Government reports that this matter will be tabled before LAB in its first meeting following the appointment of a new Board. The Government further indicates that a Decent Work Country Programme (DWCP) is currently being drafted for the country, which will include proposals for the ratification of certain international labour standards. The Government refers to the possibility of requesting the technical assistance of the ILO in this regard. The Committee encourages the Government to avail itself of ILO assistance, as appropriate, and invites the Government to provide updated information on the content and outcome of tripartite consultations held regarding the possible ratification of up-to-date Conventions, as well as in relation to the possible denunciation of outdated Conventions. In particular, and recalling its 2017 observation, noting that the Labour Advisory Board had agreed on a time-bound work plan in 2016 to discuss the possible ratification of the Domestic Workers Convention, 2011 (No. 189), the Committee requests the Government to provide information on progress in respect of such discussions and their outcomes.
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