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Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Eswatini (RATIFICATION: 1978)

Article 2 of the Convention. Right of workers and employers to establish organizations without previous authorization. In its previous comments, the Committee had requested the Government to bring the issue of the amendment of section 32 of the Industrial Relations Act (IRA) to the relevant national tripartite structure for discussion. The Government reported that the Labour Advisory Board (LAB) had examined the issue and concluded that section 32 ought to be amended simultaneously with sections 27 and 28 of the law. However, the LAB decided to stay the amendment of section 32 in view of the fact that other provisions in the law were outdated and that it was advisable to conduct a comprehensive and holistic review of the whole legislation. In its latest communication dated 30 November 2020, the Government informs that the LAB has approved the appointment of the Conciliation, mediation and Arbitration Commission (CMAC) to lead the holistical review of the IRA for a period of three months and to submit a draft new legislation. The Committee requests the Government to inform on any developments in this regard.

Article 3. Right to strike in practice. The Committee previously noted the Government’s indication that the Industrial Court of Appeal upheld in a decision the principle that an employer is allowed to use replacement labour during the course of a lawful strike action (Case No. 12 of 2017). The Government specified that it held a different view and had issued a public statement, before the Court decision, to the effect that employers are not allowed to resort to replacement labour during the course of a lawful strike action, as such practice could negate the very purpose of a strike action as a collective bargaining tool available to workers. The Government indicated its intention to include this subject matter in the planned holistic review of the Industrial Relations Act. The Committee notes the observations from the TUCOSWA that since its request of 2018, the Government has made no efforts to commence the legislative change necessary to curb the consequences of the judgment of the Industrial Court of Appeal. The TUCOSWA concludes that there is no political will to embark on the holistic review of the Industrial Relations Act so as to explicitly provide for the protection of the right to strike. The TUCOSWA submits that since the pronouncement of the judgment, strike action has been significantly reduced if not eliminated, as each time there is a threat of a strike, the employers simply brandish the judgment and make workers aware that if they proceed with the strike they can be replaced during the industrial action. The Committee recalls its view that provisions allowing employers to dismiss strikers or replace them temporarily or for an indeterminate period are a serious impediment to the exercise of the right to strike, particularly where striking workers are not able in law to return to their employment at the end of the dispute (see the 2012 General Survey on the fundamental Conventions, paragraph 152). The legislation should provide for genuine protection in this respect. The Committee once again requests the Government to provide information on any measures taken or envisaged in this regard, including to address the concerns raised by the TUCOSWA, trusting that the matter will be included in the holistic review of the Industrial Relations Act by the CMAC or as a separate legislative measure.