Informe provisional - Informe núm. 367, Marzo 2013

Caso núm. 2949 (Eswatini) - Fecha de presentación de la queja:: 23-MAY-12 - En seguimiento

Allegations: The complainant denounces its deregistration by the Government and the denial through police and military forces of its rights to protest against the deregistration and to celebrate May Day

1. 1186. The complaint is contained in communications dated 23 May 2012 and 1 March 2013 from the Trade Union Congress of Swaziland (TUCOSWA).
2. 1187. The Government sent its observations in a communication dated 4 June 2012 and 5 March 2013.
3. 1188. Swaziland has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1189. In a communication dated 23 May 2012, the TUCOSWA indicates that it is the only trade union national centre in Swaziland born out of the amalgamation of the Swaziland Federation of Labour (SFL) and the Swaziland Federation of Trade Unions (SFTU), and subsequently joined by the Swaziland National Association of Teachers (SNAT). According to the complainant, it was registered in terms of section 27 of Industrial Relations Act No.1 of 2000 (IRA) on 25 January 2012 after the Commissioner of Labour was satisfied that its constitution complied with the requirements of the Act (copies of the letter by the Commissioner and the certificate of registration were attached to the complaint). The TUCOSWA held its founding Congress on 9–11 March 2012 whereas the SFTU and the SFL were officially dissolved in terms of their respective constitutions.
2. 1190. The complainant alleges that, on 21 March 2012, the Commissioner of Labour wrote to the TUCOSWA demanding clarity on its objectives, following media publications that it had resolved in its founding Congress to boycott the upcoming 2013 national elections unless they are held under a multiparty system and giving seven days to reply (copies of the letter by the Commissioner and the TUCOSWA’s reply were attached to the complaint). On 4 April 2012, the date confirmed by the Commissioner of Labour for the discussion of the matter, the TUCOSWA received a letter from the Attorney-General of Swaziland informing them of his advice to the Commissioner of Labour on the deregistration of the TUCOSWA on the ground that it is not a trade union organization as envisaged by the IRA and, further, that in any event the Act does not provide for the registration of federations.
3. 1191. In the complainant’s view, such statement by the Government was a sudden change of position as the defunct national centres had been registered in terms of the IRA and all the business federations, the Federation of Swaziland Employers and Chamber of Commerce (FSE–CC) and the Federation of Swaziland Business Community are registered under the same Act. A further contradictory position is that the Government welcomed and congratulated the TUCOSWA as per its formation in a letter dated 16 March 2012 written by the Minister of Labour and Social Security (copy of the letter is attached to the complaint).
4. 1192. The Government has since deregistered the TUCOSWA, claiming that the IRA does not have a provision for the registration of federations, without following any legal procedure as envisaged by the Act, and rendering all national tripartite dialogue structures non-functional.
5. 1193. Furthermore, according to the complainant, the TUCOSWA was denied authorization through the police and military forces to protest against the deregistration and was further denied the right to celebrate May Day 2012.
6. 1194. In its communication of 1 March 2013, the complainant indicates that following its socio-economic protest notice lodged in September 2012 to protest, among other demands, against the non-recognition of the TUCOSWA by the authorities, the Government took the Congress to the Industrial Court seeking an order that the Congress be declared not be a workers’ federation in terms of the Industrial Relations Act. According to the complainant, the Government approached the court to legalize its unlawful deregistration of the TUCOSWA and the subsequent banning of its activities since April 2012. The case attracted a heavy presence of political attention, and a judgment was delivered on 26 February 2013 and a final copy circulated on 27 February 2013. The court held, in finding against the TUCOSWA, that there is a lacuna in the law as there is no provision for the registration of the federation in the act, that the same act gives the words “organization” and “Federation” special or technical meanings which cannot be given a general meaning by the court, and that the duty of the court is to interpret not to re-enact a provision of the law.
7. 1195. According to the complainant, the net effect of the judgment is that all tripartite statutory bodies for social dialogue will be hampered, since all these bodies require federation representation. As a result, the TUCOSWA has recalled all its representatives in these tripartite structures pending the finalization of the modus operandi to be agreed upon by the TUCOSWA and the Government as directed by the court. The complainant recalled that the legislative process could drag on for a very long time while the right to freedom of association remains in limbo, and that there is now no national labour union centre recognized in Swaziland since the two national centres that existed – namely the SFTU and the SFL – were formally dissolved in terms of their constitutions to give way to the formation of the TUCOSWA. The final result is that the position of the TUCOSWA is similar to that of political parties who are alleged to exist but without any mechanism for their registration.

B. The Government’s reply

1. 1196. In its communication of 4 June 2012, the Government indicated as a preliminary remark that the IRA, which constitutes the main law governing and regulating collective labour relations in Swaziland, does not contain any provision for the regulation of the registration, affiliation and amalgamation of federations. As a result of such lacuna in the legislation, there is no provision that could have given the Commissioner of Labour the capacity to register a federation. Consequently, the TUCOSWA was erroneously registered on 25 January 2012 by virtue of section 27 of the IRA, since there is no provision allowing for such registration. The only provision in the IRA concerns the registration of trade unions, staff associations and employers’ associations.
2. 1197. The Government explained that the absence of a provision on the registration of a federation had the undesired effect of rendering the registration of the TUCOSWA null and void and of no force or effect. The Government added that in trying to seek a solution, it sought legal expertise from the Office of the Attorney-General. The latter advised the Government that the registration of the TUCOSWA was a “non-act” as the TUCOSWA is not an organization as defined in the IRA. In terms of section 2, the defining section in the Act, an organization means a trade union, staff association or employers’ association. However, the same section 2 also defines a federation as “a body registered in terms of this Act, which is wholly comprised of employers and/or a combination of employers’ association, trade unions or staff association as the case may be”.
3. 1198. In the Government’s view, it is clear that the TUCOSWA falls within the definition of a federation. However, it is also clear that there is no specific provision in the IRA that allows for the registration of a federation. This omission in the law was not foreseen by the tripartite body which had drafted the Act. The Government also assessed that there is no provision in the Act that provides for the merger of two or more federations or a combination of trade unions, as appears to have been the intention of the TUCOSWA. The Government stated that such provision would be essential in that federations, unions and their members hold both movable and immovable properties and other real rights and responsibilities in their names or on behalf of affiliated organizations and their members.
4. 1199. In addition, the Government indicated that it had no record – or evidence – of the dissolution of the SFL, the SFTU and the SNAT as required by the law. It also recalled that the constitutions of the organizations which asserted that they had merged do not provide information as to asset division upon the dissolution of the organizations concerned.
5. 1200. The Government indicated that, in referring the matter to the Office of the Attorney-General, it acknowledged that it was within the mandate of the Attorney-General to take note of any gaps that may exist within the national legislation and to provide remedies for closing those gaps. The recommendation made by the Attorney-General had the effect of nullifying (ab initio) the claimed act to register the federation. The Government emphasized that there was, therefore, no valid legal registration of the TUCOSWA. The Government distinguished the case of “nullification” from the case of “deregistration” alleged by the complainant.
6. 1201. In the Government’s view, deregistration, as envisaged in the Digest of decisions and principles of the Freedom of Association Committee and as defined in the IRA, refers to the removal of an organization for failure to comply with certain provisions of the Act. Nullification, on the other hand, refers to the act of the Commissioner to undo an illegally performed administrative act.
7. 1202. The Government is of the opinion that where a name is removed from the registry, the organization continues to exist as a legal entity, since a legal entity is not created by registration but by other positive acts of establishment. A deregistration can be effected judicially where a trade union or federation fails to comply with the law, namely the IRA. A deregistration puts an end to the existence of an organization and the reinstatement will depend on the organization’s compliance with the IRA. The Government recalled that the Attorney-General refers to nullification of the entry in the register and not deregistration of the new federation. In the present case, the reinstatement of the name of the TUCOSWA would depend on the amendment of the law.
8. 1203. The Government indicated that it wholeheartedly supported the visit of a fact-finding mission by the Southern African Trade Union Coordinating Council (SATUCC) in May 2012 to assist the parties in resolving the matter. During this mission, the social partners agreed that there was a critical need to amend the IRA to address matters of registration and the amalgamation and affiliation of federations; that the amendments should be done through the mechanism of a tripartite structure with representatives of the Government, employers and workers involved; that the Labour Advisory Board should be reconvened with a view to discussing and amending the IRA and to advise the Ministry of Labour and Social Security, within a time frame not exceeding two months.
9. 1204. Furthermore, the Government recalled that it also invited the ILO Regional Office in Pretoria to Swaziland in April 2012 to offer technical assistance and support in drafting the amendments of the IRA. In extending the invitation, the Government also urged the ILO Pretoria Office to freely discuss the matter with the social partners. These acts demonstrate both goodwill and good faith on the part of the Government.
10. 1205. As to the issue of remedies, the Government recalled that there is a provision in the national law for a party which feels aggrieved to approach the Industrial Court to make a ruling in the matter of registration. The Government supported the referral of this matter to the Court for clarification and direction, more especially since the legislation in this matter needs to be addressed and amended.
11. 1206. The Government asserted that the nullification of the registration process of the TUCOSWA did not render all national tripartite dialogue structures non-functional as alleged. All national tripartite structures continue to function as they did previously.
12. 1207. The Government maintained that the SFTU, the SFL and the SNAT still exist for the following reasons:
    • ■ The establishment of the SFTU and the SFL was followed by an act of registration by the Labour Commissioner.
    • ■ The claimed dissolution and merger of the SFTU, the SFL and the SNAT should have been preceded or immediately followed by dissolution and deregistration, but this has not happened yet.
    • ■ The resolution transferring the property of the SFTU and the SFL to the TUCOSWA should have been followed by the execution of a deed of transfer or deed of donation. This meant that the property is still held by the SFTU and the SFL respectively.
    • ■ Books of account should have been audited and a summary of assets and liabilities verified by auditors before dissolution of the SFTU and the SFL. The Government recalled that common law required these audit statements before dissolution, merger or consolidation could legally take place. In the absence of these, the Government maintained that the SFTU and the SFL still exist and the allegation that there is no longer any trade union national centre in Swaziland is false.
    • ■ The Commissioner of Labour should have been informed especially in relation to arrangements concerning employees of the respected federations, as provided for by the Swaziland Employment Act, but this had allegedly not been done.
    • ■ The Government asserted that the merger and dissolution of the SFTU, the SFL and the SNAT created serious confusion and uncertainty for public opinion and individual trade unions affiliated to the SFTU and the SFL in particular. In such circumstances, the Government is of the view that it had a role to play in ensuring that there is clarity and certainty in all processes and activities involving labour market institutions.
13. 1208. The Government believed that this matter was brought prematurely before the Committee and reiterated its commitment to facilitating the speedy amendment of the IRA in this regard. In a communication dated 5 March 2013, the Government transmitted the judgment rendered by the Industrial Court on 26 February 2013.

C. The Committee’s conclusions

1. 1209. The Committee notes that this case concerns allegations of the deregistration of a federation by the Government and the denial through police and military forces of its right to protest against the deregistration.
2. 1210. The Committee takes note of the explanations from the TUCOSWA that it is the only trade union national centre in Swaziland born out of the amalgamation of the SFL and the SFTU, and subsequently joined by the SNAT. According to the complainant, it was registered in terms of section 27 of the IRA on 25 January 2012 after the Commissioner of Labour was satisfied that its constitution complied with the requirements of the Act (copies of the letter by the Commissioner and the certificate of registration were provided by the complainant). The Committee notes that the TUCOSWA held its founding Congress on 9–11 March 2012 whereas the SFTU and the SFL were officially dissolved in terms of their respective constitutions.
3. 1211. The Committee notes from the complainant that, on 21 March 2012, the Commissioner of Labour wrote to the TUCOSWA demanding clarity on its objectives, following media publications that it had resolved in its founding Congress to boycott the upcoming 2013 national elections unless they are held under a multiparty system and giving it seven days to reply (copies of the letter by the Commissioner and the TUCOSWA’s reply were attached to the complaint). The Committee further notes that, on 4 April 2012, the TUCOSWA received a letter from the Attorney-General of Swaziland informing them of his advice to the Commissioner of Labour on the removal of the TUCOSWA from the register of organizations under the IRA as it was not considered an organization as envisaged by the Act and, further, that in any event the Act does not provide for the registration of federations.
4. 1212. The Committee notes that in the complainant’s view, such statement by the Government was a sudden change of position as the defunct national trade union centres were registered in terms of the IRA and that all the business federations, the FSE–CC and the Federation of Swaziland Business Community are registered under the same Act. The complainant adds that a further contradictory position is that the Government welcomed the formation of the TUCOSWA in a letter dated 16 March 2012 from the Minister of Labour and Social Security (a copy of the letter was attached to the complaint).
5. 1213. The Committee notes the Government’s indication that the IRA is the main law governing and regulating collective labour relations in Swaziland; however, it does not contain any provision for the regulation of the registration, affiliation and amalgamation of federations. As a result of such lacuna in the legislation, there is no provision that could have given the Commissioner of Labour the capacity to register a federation. Consequently, in the Government’s view, the TUCOSWA was erroneously registered on 25 January 2012 by virtue of section 27 of the IRA, since there is no provision allowing for such registration.
6. 1214. The Committee takes note of the Government’s explanation that the absence of provision on the registration of a federation had the effect of rendering the registration of the TUCOSWA null and void. The Government adds that in trying to seek a solution, it sought legal expertise from the Office of the Attorney-General. The latter advised the Government that the registration of the TUCOSWA was a “non-act” as the TUCOSWA is not an organization as defined in the IRA. In terms of section 2, the defining section in the Act, an organization means a trade union, staff association or employers’ association. However, the same section 2 also defines a federation as “a body registered in terms of this Act, which is wholly comprised of employers and/or a combination of employers’ association, trade unions or staff association as the case may be”.
7. 1215. In the Government’s view, it is clear that the TUCOSWA falls within the definition of a federation. However, it is also clear that there is no specific provision in the IRA that allows for the registration of federations. This omission in the law was not foreseen by the tripartite body which had drafted the Act. The Government also assessed that there was no provision in the Act that provided for the merger of two or more federations or a combination of trade unions, as appears to have been the intention of the TUCOSWA. The Government stated that such provision would be essential in that federations, unions and their members hold both movable and immovable properties and other real rights and responsibilities in their names or on behalf of affiliated organizations and their members. In addition, the Government indicates that it had no record – or evidence – of the dissolution of the SFL, the SFTU and the SNAT as required by the law.
8. 1216. The Committee further notes the Government’s view that the recommendation made by the Attorney-General had the effect of nullifying (ab initio) the claimed act to register the federation which is a case of “nullification” and not a case of “deregistration” as alleged by the complainant. The Government emphasizes that deregistration, as defined in the IRA, refers to the removal of an organization for failure to comply with certain provisions of the Act. Nullification, on the other hand, refers to the act of the Commissioner to undo an illegally performed administrative act. The Government adds that where a name is removed from the registry, the organization continues to exist as a legal entity, since a legal entity is not created by registration but by other positive acts of establishment. In the present case, the Attorney-General refers to nullification of the entry in the register and not deregistration of the new federation. Consequently, the reinstatement of the name of the TUCOSWA would depend on the amendment of the law.
9. 1217. As a preliminary remark, the Committee recalls that the principle laid down in Article 2 of Convention No. 87 that workers and employers shall have the right to establish and join organizations of their own choosing implies for the organizations themselves the right to establish and join federations and confederations of their own choosing. The Committee recalls, moreover, that the acquisition of legal personality by federations and confederations shall not be made subject to conditions of such a nature as to restrict the exercise of [this] right [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 710 and 711]. The Committee notes that the Government acknowledges that the TUCOSWA falls within the definition of a federation under the terms of section 2 of the IRA. While it understands from the Government’s reply that the registration of the TUCOSWA cannot be validated under section 27 of the Act since it does not specifically provide for the registration of a federation, the Committee expresses its concern at the fact that section 32 of the Act on the regulation of federations and section 41 on the amalgamation and affiliation of organizations and federations (invoked by the TUCOSWA in its reply of April 2012 to the position of the Attorney-General) were not considered for resolution of the matter.
10. 1218. The Committee nevertheless takes due note of the Government’s statement that it wholeheartedly supports any assistance that might be provided to the parties in resolving the matter. In this regard, the Committee notes from the Government’s reply that a fact-finding mission by the SATUCC visited the country in May 2012 and that, during the mission, the social partners agreed that there was a critical need to amend the IRA to address matters of registration and the amalgamation and affiliation of federations; that the amendments should be done through the mechanism of a tripartite structure with representatives of Government, employers and workers involved; that the Labour Advisory Board should be reconvened with a view to discussing and amending the IRA and to advise the Ministry of Labour and Social Security, within a time frame not exceeding two months. The Committee also notes that the Government invited the ILO Regional Office in Pretoria to Swaziland in April 2012 to offer technical assistance and support in drafting the amendments of the IRA. While taking due note of the Government’s expressed openness to promptly resolve the legislative omission concerning the registration and the amalgamation of federations in consultation with the social partners concerned, the Committee expresses its deep concern that the matter is apparently yet to be resolved nearly one year since the TUCOSWA’s registration was nullified, thus hindering its effective exercise of its trade union rights. The Committee urges the Government to provide information on the progress made to amend the IRA. The Committee urges the Government to take the necessary measures to ensure that the TUCOSWA is registered without any further delay and requests the Government to indicate the specific steps taken in this regard.
11. 1219. The Committee notes with concern the allegations that the TUCOSWA was denied authorization through the police and military forces to protest against the deregistration and was further denied the right to celebrate May Day 2012. It observes that the Government did not provide any reply to these serious allegations. The Committee firmly recalls that the holding of public meetings and the voicing of demands of a social and economic nature on the occasion of May Day are traditional forms of trade union action. Trade unions should have the right to organize freely whatever meetings they wish to celebrate on May Day, provided that they respect the measures taken by the authorities to ensure public order [see Digest, op. cit., para. 137]. Moreover, the Committee emphasizes the importance it attaches to the right to carry out peaceful demonstrations in relation to members’ occupational interests, and regrets that the TUCOSWA was denied the possibility to demonstrate against the nullification of its registration and to celebrate May Day. The Committee urges the Government to ensure that the principles mentioned above are fully respected in the future.
12. 1220. The Committee notes from the complainant’s allegations that the deregistration of the TUCOSWA by the Government, without following any legal procedure as envisaged by the Act, rendered all national tripartite dialogue structures non-functional. The Committee notes, as to the issue of remedies, that the Government has indicated that it refers to a provision in the national law for a party which feels aggrieved to approach the Industrial Court to make a ruling in the matter of registration. Moreover, the Government has indicated that it supported the referral of this matter to the Court for clarification and direction, more especially since the legislation in this matter needed to be addressed and amended. The Committee also notes that the Government asserts that the nullification of the registration process of the TUCOSWA did not render all national tripartite dialogue structures non-functional as alleged. According to the Government, all national tripartite structures continued to function as they did previously.
13. 1221. The Committee notes from the complainant’s most recent communication that, following its socio-economic protest notice lodged in September 2012 to protest, among other demands, against the non-recognition of the TUCOSAW by the authorities, the Government took the organization to the Industrial Court seeking an order that it be declared not to be a workers’ federation in terms of the Industrial Relations Act.
14. 1222. The Committee notes that the Industrial Court delivered its decision on 26 February 2013 and held, in finding against the TUCOSWA, that there is a lacuna in the law as there is no provision for the registration of the Federation in the Act and that the duty of the Court is to interpret not to re-enact a provision of the law. The net effect of the judgment, from the complainant’s view, is that all tripartite statutory bodies for social dialogue will be hampered, since all these bodies require Federation representation. As a result, the TUCOSWA had recalled all its representatives in these tripartite structures pending the finalization of the modus operandi to be agreed upon by the TUCOSWA and the Government as directed by the Court. The final result is that there is now no national labour union centre recognized in Swaziland, the two national centres that existed – namely the SFTU and the SFL – were formally dissolved in terms of their constitutions to give way to the formation of the TUCOSWA.
15. 1223. The Committee must express its deep concern over the delay in finding a solution to the recognition and registration of the TUCOSWA and the consequences this has now had for any meaningful tripartite social dialogue in the country.
16. 1224. Bearing in mind the initial concerns raised by the Commissioner of Labour in the letter of 21 March 2012 calling into question the TUCOSWA’s demands for a multiparty system, the Committee must recall that a system of democracy is fundamental for the free exercise of trade union rights. Moreover, the Committee has consistently expressed the importance, for the preservation of a country’s social harmony, of regular consultations with employers’ and workers’ representatives; and that such consultations should involve the whole trade union movement, irrespective of the philosophical or political beliefs of its leaders [see Digest, op. cit., paras 32 and 1065]. The Committee therefore urges the Government to take all measures urgently, including those necessary for the registration of the TUCOSWA, to ensure the participation of its representatives in the relevant tripartite structures and to indicate the specific steps taken to this end.

The Committee’s recommendations

1. 1225. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) While taking due note of the Government’s expressed openness to promptly resolve the legislative omission concerning the registration and the amalgamation of federations in consultation with the social partners concerned, the Committee expresses its deep concern that the matter is apparently yet to be resolved nearly one year since the TUCOSWA’s registration was nullified, thus hindering its effective exercise of its trade union rights. The Committee urges the Government to provide information on the progress made to amend the IRA.
   • (b) The Committee urges the Government to take the necessary measures to ensure that the TUCOSWA is registered without any further delay and requests the Government to indicate the specific steps taken in this regard.
   • (c) The Committee urges the Government to take all measures urgently, including those necessary for the registration of the TUCOSWA, to ensure the participation of its representatives in the relevant tripartite structures and to indicate the specific steps taken to this end.
   • (d) The Committee urges the Government to ensure that the principles of freedom of association concerning the right to peaceful demonstrations and to celebrate May Day, which constitute a traditional form of trade union action, are fully respected in the future.