Caso individual (CAS) - Discusión: 1998, Publicación: 86ª reunión CIT (1998)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Eswatini (Ratificación : 1978)

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.