Cas individuel (CAS) - Discussion : 1996, Publication : 83ème session CIT (1996)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Eswatini (Ratification: 1978)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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