Cas individuel (CAS) - Discussion : 2002, Publication : 90ème session CIT (2002)

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

A Government representative thanked the ILO for the technical assistance it provided his Government which had resulted in the adoption of an amended Industrial Relations Act. He wanted to indicate at the outset that his Government had also taken steps to initiate social dialogue in the country, as had been urged by the Committee of Experts.

He recalled that the Committee of Experts had raised two questions in respect to the application of the Convention, in his country. The first concerned the right to organize of the prison staff in defence of their economic and social interests. The second concerned the dispute resolution procedures which accoring to the Committee of Experts were too long. The adoption of the amended Industrial Relations Act incorporating changes under sections 40(13) and 52 as a result of the technical assistance received from the ILO, had been noted with interest by the Committee of Experts.

In respect of the request of the Committee for the amendment of the legislation in order to decrease the length of compulsory dispute settlement procedures provided in sections 85 and 86, read with sections 70-82, of the Industrial Relations Act, he indicated that the purpose of the dispute settlement procedure was not to prohibit strikes, but to permit alternative resolution of the question before resorting to the ultimate measure of a strike. He recalled that no law was perfect and that these provisions were not engraved in stone. He hoped that this Committee, as well as the Committee of Experts, would appreciate the efforts his Government was making to conform to the requirements of the Convention. He requested the Office to assist the Governmen by providing a copy of the General Survery on Freedom of Association of 1994.

The Employer members stated that this case was a familiar one that the Committee had been discussing since the mid-1980s and every year since 1996. They indicated that there were three issues involved. The first concerned the lengthy procedure and complicated balloting requirement to hold a peaceful protest. The Committee of Experts had noted with interest the changes made in the Government's laws in both respects and requested reports on the practical application of section 40 of the Industrial Relations Act. In paragraph 113 of the General Part of the report, the Committee of Experts included Swaziland for Convention No. 87 in the list of cases of progress and this Committee should take note of that fact.

The second issue related to the denial of the right to organize prison staff. They indicated their agreement with the Committee of Experts that such prison staff could not legitimately be considered as part of the armed forces and thus were excluded by the law. The Committee of Experts had also concluded that there could be restrictions on their right to strike. The Employer members noted this and indicated that this Committee did not have to deal with this question in its conclusions.

The third issue concerned the lengthy procedure required before there could be a legal strike. The Experts provided no procedural information on the process other than regarding its length.

The Employers' well-known view meant that these details relating to the right to strike could not be taken up in the conclusions to this case. Clearly, there was no one size fits all answer to this question. Since the last time the Committee discussed this case there had been some steps forward and the Committee could only be encouraged by these positive steps and urge the Government to keep them up.

The Worker members pointed out that Swaziland had ratified Convention No. 87 24 years ago. Given the serious violations noted regarding the exercise of the freedom of association, this case had been discussed by the Committee since 1996. It presented more specifically a problem regarding the unionization of prison workers. Despite the adoption of Act No. 8 of 2000, modifying many sections of the Act on labour relations, the limitations on the freedom of association and on the right to strike persisted. As such, prison workers did not enjoy the right to organize, which undermined the right to strike of this professional body. The adjusting of the Act regulating trade unions and prison workers was thus necessary, all the more so since this corporation contained particularities which required its personnel to be unionized.

The compulsory procedure prior to a strike had been qualified by the Committee of Experts as a particularly heavy procedure. This procedure was clearly in contradiction with Article 3 of the Convention and aimed to discourage all strikes. The probable objective was to silence trade unions, and in the long run, to make them disappear. A reduction in the length of the compulsory procedure prior to a strike thus was indispensable to ensure a better exercise of the fundamental public liberties that were the freedom of association and the right to strike. The Government thus had to proceed with amendments to legislation regarding the right to organize of prison workers and concerning the settlement of disputes so as to ensure the observance of the Convention and guarantee the freedom of expression of prison workers in particular and of trade unions in general.

The Worker member of Swaziland stated that the correctional service employees were still denied the right to form and join organizations of their choice for collective bargaining purposes. The strike procedure was still too long so that it effectively impeded this right, as it had been when the Committee had advised the Government to shorten the period in question. The civil liability clause still existed and remained a threat and an impediment to workers from addressing their socio-economic issues by way of protest action. In short, in the last year, the attempts made by both employers and workers to amend the law, within the Labour Advisory Board, were always undermined by the Government.

He recalled that Swaziland was appearing before the Committee for the seventh consecutive year for continuous violations of freedom of association, evidencing the obstinacy of the Government. As in the past, the Government had made a host of promises to the Committee that it had not kept. Tripartite advice to amend laws was ignored. On the contrary, the Government had arbitrarily come up with the 1996 Industrial Relations Act that had criminalized industrial relations. Having obtained the assistance of the technical team of the ILO, it failed to amend the Act to render it in conformity with the Conventions. The Government turned a deaf ear to advice that was given to it for several years not to use the emergency orders and decrees against workers and particularly the Public Order of 1963 and section 12 of the 1973 decree. No reports had been made by the Commission of Inquiry established to look into the death of a 16-year-old schoolgirl shot by the police during a peaceful demonstration of the SFTU and into the abduction of the Secretary-General of the SFTU. Despite the adoption of the Industrial Relations Act 2000 under the pressure of this Committee's special paragraphs and the possibility of loss of trade benefits under the United States system of preferences, several developments took place in the country. Mass meetings of workers were banned. Workers were detained and charged for leading peaceful demonstrations and brutalized for participating in them. They were denied the right to address press conferences and the right to present petitions. He stated that there could not be any workers' right without broader human rights and civil liberties and that neither could exist nor be sustainable without freedom of association.

The speaker considered that even though the Industrial Relations Act 2000 was largely in conformity with the Convention, it was null and void in the eyes of the authorities because it contradicted the provisions of the 1973 State of Emergency Decree that was the supreme law of the country. This view was confirmed by subsequent developments. The Government passed Decree No. 2 of 2001 that usurped all fundamental rights and was later repealed due to national and international outcry. The Government later introduced a bill to prevent head teachers in schools from joining the teachers' union. There was also a media council bill designed to muzzle the media and freedom of expression that was still under consideration. Before May this year the executive officer of his union was called and warned not to criticize the Government. Since then, the Government had published a new Internal Security Bill that proposed many draconian constraints and restrictions such as the prohibition of announcements of strikes, and characterizing strikes as economic sabotage. The improvements of the labour laws were simply reversed by other statutes. In effect this was like a situation of permanent state of emergency. Despite Swaziland's ratification of six of the eight ILO core Conventions, the African Charter and Peoples' Right, the African Union Constitutive Act, despite its membership of the United Nations, OAU and the Commonwealth, it was reverting to de-humanizing and archaic laws.

With a view to finding a lasting solution, he called for the ILO to send a tripartite high-level political mission to the country to meet with the authorities in order to impress upon them the urgency of amending the laws in question and of respecting the laws in practice.

The Worker member of South Africa stated that the context in which this case concerning Convention No. 87 was being discussed was set out in Chapter 2 of the Digest of Decisions of the Committee on Freedom of Association. It was clearly stated in paragraph 33 of this Digest that the rights conferred upon workers and employers must be based upon civil liberties enunciated in the Universal Declaration of Human Rights, and the absence of these liberties removed all meaning from the concept of trade union rights. In paragraph 34, it was indicated that a system of democracy was fundamental for the exercise of trade union rights. Swaziland was far from being a democracy. The 1973 decree, which was still in force, banned political parties and had suspended the Bill of Rights contained in the independence Constitution. As a result, trade unions took up the role of fighting for human and trade union rights. If progress was said to have been made in labour legislation without any progress on civil liberties, this constituted no progress at all. Despite Article 8(2) of the Convention, which states that national law should not impair guarantees provided for in the Convention, the Government in Swaziland had been using security laws to do just that. The Internal Security Bill, which was intended for terrorists, severely crippled trade union activities and denied freedom of association.

He recalled that this case had been discussed in this Committee for several years. The Government had been promising the adoption of legislation that would be in conformity with the requirements of the Convention. The Committee had been pressing for the right to organize of the staff of correctional services, while recognizing the possible limitation of their right to strike. The Government had to give justifiable replies to the comments of the Committee of Experts. The Committee had also requested amendments to the legislation in respect to the grievance procedure before strikes. As a result, he considered that the Committee should remain seized of this case through a special paragraph.

The Worker member of Norway expressed solidarity with the trade unions of Swaziland and concern at their situation. The Nordic trade unions had been closely following the political and trade union situation in Swaziland and the behaviour of the Government for some time. She supported the proposal that a high-level political mission be sent to Swaziland as soon as possible to assist the Government to bring the legislation into compliance with the ILO's fundamental Conventions.

The Worker member of Senegal recalled that it was not the first time that the case of Swaziland had been examined by the Committee. Even so, the report of the Committee of Experts only reflected part of the situation. The system was clearly anti trade union and continued to track down trade union leaders, harassing them with judicial action for exercising their right to strike. This state of emergency under which all constitutional freedoms were suspended had existed since 1973 and was still in force. The only efforts made by the Government to amend the Act adopted in 2000 had been undertaken out of a fear of losing trade privileges, especially those relating to the general system of preferences. In violation of Article 3 of the Convention, the legislation in Swaziland contained a large number of restrictions, and particularly the exclusion of prison staff from a fundamental human right, namely the freedom to establish a trade union. The Committee of Experts had drawn attention to the fact that the Government had adopted measures which had removed the substance of Article 3 of the Convention and which denied trade union organizations their rights. There was no other way to explain why peaceful protest action had been made subject to holding a ballot. The repressive powers provided for in Decree No. 2 had been repealed by Decree No. 3, which had however maintained the denial of bail for some offences. The current system attempted to control the SFTU in a more visible manner than in the past. The lengthy procedures preceding the calling of a strike had this implicit function. The Government was no longer able to hide its intention to dismantle trade union organizations. The case of Swaziland should be set out in a special paragraph of the Committee's report.

The Worker member of Japan recalled that, even though the case had been examined by the Committee on several occasions and the Government had adopted the recommendations made by the Committee, the civil liability clause still existed and remained a threat and impediment for workers to express their opinions without any restrictions. He emphasized that freedom of association was based on the right of expression which should be fully secured by the Government. He emphasized that there could be no trade union rights without the right to freedom of association, peaceful assembly and freedom of expression. Referring to the reports of Amnesty International, he noted that these rights remained restricted in Swaziland. Government action still threatened the independence of the judiciary and undermined court rulings, and there were a number of reports of torture and ill-treatment by the police.

He cited a number of concrete examples and asked the Government to provide detailed information on these cases to the Committee. He indicated that Mr. Mario Masuku, President of the People's United Democratic Movement, had been arrested once again on 4 October 2001. He had previously been arrested in November 2000 on charges of sedition and had been released under restrictive bail conditions, including the requirement to obtain the permission of the Commissioner of Police when he intended to address any public gathering and to obtain the permission of the High Court to travel abroad. He had required treatment in the hospital because of the poor prison conditions. He also cited the deaths of Edison Makhanya and Sisbusiso Jele, which had occurred within hours of their arrest by the police on 20 March 2001. These were only examples of many reports of torture or ill-treatment by the police.

On 19 October 2001, the police had broken up the news conference organized by members and affiliates of the Swaziland Democratic Alliance to protest against the detention of the opposition leader, Mario Masuku. Several journalists had also been harassed by the police because of their work and a number of publications had been banned. The Government had also threatened to reintroduce a Media Council Bill to tighten restrictions on journalists and publications.

He called upon the Government to give effect in law and practice to the promises that it had made in this Committee. The duty of the Government was not to avoid being criticized, but to take direct steps to build a democratic country in cooperation with the trade unions. He also hoped that the Government would stop antagonizing the trade union movement and would accept the ILO tripartite delegation, which would assist the social partners to engage in dialogue with a view to finding solutions to the human rights problems in Swaziland.

The Worker member of Côte d'Ivoire stated that the case of Swaziland was of prime importance because it dealt with freedom of association, which was the cornerstone of trade union rights, and the concomitant right to strike. Freedom of association and the exercise of the right to strike were inextricably linked, and were among the fundamental public freedoms that each State had to guarantee. The situation in Swaziland was symptomatic of that prevailing in a number of countries, especially in Africa. It was part of a logic intended to silence trade unions and their claims. But Article 2 of the Convention was clear, and unequivocal. This Article provided that all occupational sectors, without exception, had the right to organize. The militarization of some occupational categories had the sole aim of preventing them from establishing trade unions and making their claims. The legislation in Swaziland should therefore be amended to allow prison staff to organize.

With respect to Article 3 of the Convention, the compulsory dispute settlement procedure provided for in sections 85 and 86, in relation to sections 70 to 82 of the Industrial Relations Act was outdated and dangerous for trade unions. It was in direct violation of the provisions of Article 3 of the Convention and threatened trade union action by making it difficult, or even impossible to call a strike These procedures were a violation of freedom and the Convention, and were an obstacle to trade union action. They should be withdrawn. Several States had such procedures, which denied the right of workers to strike, even though this was the only weapon they could use. Furthermore, heavy sanctions were imposed in the event of non-observance of these procedures, which further aggravated the situation. The Committee had been discussing the case of Swaziland for seven years and should support the position of the Worker members and of the Worker member of Swaziland.

The Worker member of the United States expressed the solidarity of AFL-CIO with the workers of Swaziland and its deep concern about the deteriorating political situation in the country, particularly with regard to civil liberties, which undermined freedom of association. He indicated that AFL-CIO intended to renew its efforts to bring a GSP complaint against the Government of Swaziland because of the deteriorating political situation.

The Employer member of Swaziland indicated that it was clear from the discussion with respect to this case that Swaziland was in dire need of the continuation of social dialogue. The labour reforms that had occurred in Swaziland with the assistance of the ILO technical advisory team bore testimony to the power of this process. He emphasized that the employers had driven such dialogue and some of the gains that had been achieved were a result of their relentless efforts to promote dialogue between the social partners. He therefore called upon the ILO to continue assisting his country to accelerate the process of social dialogue, particularly at the national level. He also appealed to the other social partners to renew their commitment to the process. Finally, he expressed the conviction that, with the assistance of the ILO in promoting dialogue, his country would be able to report significant progress in the current year in addressing its problems.

The Government representative expressed his gratitude to all speakers for their statements in relation to the case. In view of the political content of some of these statements, he believed that it was important to provide some background on the political context in his country. He indicated that the Government had established a committee to draft the national Constitution in conformity with international standards. Referring to the Internal Security Bill, he emphasized that proposed legislation of this nature was an internal matter that did not call for discussion by the Committee. He added that the legislative process in his country allowed for a 30-day period following the publication of draft legislation in which views on the proposed texts could be made known.

He emphasized that it was misleading to suggest that his country was moving backwards. He added that it was important to follow due process before the ILO's supervisory bodies. The next step in the process would be for the Committee of Experts to analyse the information provided by the Government and to request any further information that was required. It would then be possible to consider the progress made. He reaffirmed the commitment of his Government to taking advice from the supervisory bodies and entering into discussions with the social partners at the national level with a view to taking the necessary action. He further emphasized that statements to the effect that workers were denied their essential freedoms in Swaziland were untrue. He affirmed that no one was in prison in Swaziland on account of trade union activities. Moreover, there had been many applications under the new legislation to establish new organizations. He reaffirmed the commitment of his country to conform with its international obligations. However, he believed that it would be premature in the process of dialogue with the supervisory bodies to send a high-level mission to his country at the present time.

The Worker members expressed their gratitude to the Government representative for his statement and the information provided. Swaziland had ratified the Convention 24 years ago and the case had been examined by the Committee on several occasions. Since 1996, the issue of the difficulties of application of the principle of freedom of association in Swaziland had been examined at every session of the Committee. Serious violations had been noted, which still persisted. The Worker members took note of the observation of the Committee of Experts and the adoption of Act No. 8 amending sections 29, 40 and 52 of the Industrial Relations Act of 2000. Restrictions on fundamental public freedoms existed in Swaziland with respect to freedom of association and the right to strike. In fact, the prison staff did not have the right to organize. The absolute nature of this restriction violated Article 2 of the Convention and severely restricted the right to strike of this occupational category. Amendments to the law governing the right to organize of this occupational category were required. The right to organize and the parallel right to strike needed to be freely exercised by prison staff.

With respect to protest action, it had to be noted that the mandatory procedure for the settlement of disputes prescribed in sections 85 and 86, read in conjunction with sections 70-82 of the Industrial Relations Act, was lengthy. The Committee of Experts referred to this procedure as "particularly lengthy". Such a procedure was in violation of Article 3 of the Convention and was intended to discourage all protest action. The direct consequence was the silencing of the trade unions, their inability to act and their disappearance in the long term, which was probably the desired result. Such regulations were not only unacceptable to the Worker members on the basis of their convictions and their trade union commitment, but also in the light of internationally recognized fundamental human freedoms. This procedure was clearly in violation of the Convention. A reduction in the length of the compulsory procedure prior to protest action was required to improve the observance of the fundamental public freedom of association and the right to strike.

The legislation governing the right to organize of prison staff and the dispute settlement procedure had to be changed so as to comply with the Convention and respect the freedom of expression of prison staff and trade unions in general. In the event that the Government did not accept a high-level mission, the Committee's conclusions should be set out in a special paragraph of its report.

The Employer members appreciated the expression of good will and intention by the Government representative. They called upon the Government to take action to bring national law and practice into conformity with the Convention. However, if progress were not made, they warned that the Committee might have to look at the case differently next year. They also recalled that the Committee's discussion of the case needed to be based closely on the comments made by the Committee of Experts. If the Committee of Experts were to identify further issues in relation to this case, it could request additional information. They reminded the Government that it needed to take action to ensure that it achieved compliance with the Convention in both law and practice. A Convention could not just be applied through the adoption of appropriate laws, but measures also needed to be taken to ensure its application in practice. They urged the Government to take seriously any issues identified by the Committee of Experts in its analysis of the information provided and to follow the advice given. Although they would normally have considered a technical advisory mission to be premature at this stage, in view of the background to the present case they called upon the Government to give strong consideration to the proposal to send a technical assistance mission to the country. However, they believed that it would be premature on this occasion for the Committee to place its conclusions on this case in a special paragraph of its report, as suggested by the Worker members.

The Committee noted the statement made by the Government representative and the discussion which took place thereafter. It noted with interest the adoption of Act No. 8 of 2000, modifying sections 29, 40 and 52 of the Industrial Relations Act, 2000, which appeared to bring the legislation into greater conformity with the provisions of the Convention while, according to the Committee of Experts, certain problems with the application of the Convention remained. It also noted that a certain number of concerns had been raised during the discussion concerning the practical application of this legislation and requested the Government to provide the information requested by the Committee of Experts in this respect. The Committee further noted with concern the statements to the effect that a Bill on internal security had been drafted which would place serious restrictions on the right of workers' and employers' organizations to exercise their activities. It requested the Government to transmit a copy of this Bill to the Committee of Experts, and any other relevant information concerning developments in this respect, so that the Committee could examine the Bill's conformity with the provisions of the Convention at its next meeting. Recalling that respect for civil liberties was essential to the exercise of trade union rights, the Committee expressed the firm hope that it would be able to note a significant improvement in the application of this Convention in the near future, both in law and in practice. To this end, the Committee once again suggested that the Government consider the possibility of a high-level mission aimed at collecting information on the practical application of the Convention and contributing to a better implementation of the Convention.