Cas individuel (CAS) - Discussion : 2000, Publication : 88ème session CIT (2000)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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