Interim Report - REPORT_NO370, October 2013

CASE_NUMBER 2949 (Eswatini) - COMPLAINT_DATE: 23-MAI-12 - Follow-up

Allegations: The complainant denounces its deregistration by the Government and the denial through police and military forces of its rights to protest against the deregistration and to celebrate May Day

1. 704. The Committee last examined this case at its March 2013 meeting where it presented an interim report to the Governing Body [see 367th Report, approved by the Governing Body at its 317th Session (March 2013), paras 1186–1225].
2. 705. The Government sent additional observations in communications dated 19 March and 29 May 2013.
3. 706. Swaziland has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 707. In its previous examination of the case at its March 2013 meeting, the Committee made the following recommendations [see 367th Report, para. 1225]:
   • (a) While taking due note of the Government’s expressed openness to promptly resolve the legislative omission concerning the registration and the amalgamation of federations in consultation with the social partners concerned, the Committee expresses its deep concern that the matter is apparently yet to be resolved nearly one year since the TUCOSWA’s registration was nullified, thus hindering its effective exercise of its trade union rights. The Committee urges the Government to provide information on the progress made to amend the IRA.
   • (b) The Committee urges the Government to take the necessary measures to ensure that the TUCOSWA is registered without any further delay and requests the Government to indicate the specific steps taken in this regard.
   • (c) The Committee urges the Government to take all measures urgently, including those necessary for the registration of the TUCOSWA, to ensure the participation of its representatives in the relevant tripartite structures and to indicate the specific steps taken to this end.
   • (d) The Committee urges the Government to ensure that the principles of freedom of association concerning the right to peaceful demonstrations and to celebrate May Day, which constitute a traditional form of trade union action, are fully respected in the future.

B. The Government’s reply

1. 708. In a communication dated 19 March 2013, the Government provides its observation in reply to the latest allegations of the TUCOSWA. It indicates in particular that:
   • – At the time the TUCOSWA submitted a protest action notice before the Labour Advisory Board, it was not registered under Section 40 of the Industrial Relations Act (IRA).
   • – The non-recognition of the TUCOSWA is only limited to it taking part in any structure established under the labour laws of the country. It needs to be registered first.
   • – The Government decision and subsequent removal of the TUCOSWA from the Register of Organizations is not unlawful. The Courts have actually fortified the Government actions, which were primarily aimed at ensuring that the law is complied with. There was never, on the part of the Government, any scintilla of ill will against the TUCOSWA, hence the Government has urgently initiated an amendment of the Industrial Relations Act and the TUCOSWA was part of the body which formulated the draft amendments. The Government has also received technical comments from the ILO.
   • – The last day of arguments by the parties in court was on 18 December 2012, which was two days after the end of the Third Session of the Industrial Court. The Industrial Court resumed its sittings on 4 February 2013. The delivering of the court decision on 26 February 2013 was therefore not influenced by the Government.
   • – The TUCOSWA’s statement to the effect that the Court cited in ignorance all the provisions of Convention No. 87 is unfortunate and irresponsible, particularly because it is degrading to an instance composed of qualified and experienced arbiters, who for years, have enormously developed the Country’s jurisprudence and guided labour relations in the right direction. In any event, the TUCOSWA still has a right to appeal the Court's decision.
   • – Concerning TUCOSWA’s participation in tripartite structures, the Government has, in compliance with the Court directive, called all the registered trade unions which formed the federation, so that a way forward may be charted while awaiting the promulgation of the IRA (amendment) Bill into law. Alternatively, the Government has proposed the formation of an interim tripartite structure.
   • – On 8 March 2013, in a meeting convened by the Commissioner for Labour, the Federation of the Swazi Business Community (FESBC) was informed that they are not a Federation in terms of the IRA as they were registered under the same provision of the Act as the TUCOSWA. A letter of removal from the Register of Organizations was issued in this regard.
   • – On 13 March 2013, the Ministry of Labour invited all the affiliates of the TUCOSWA, to get their views on what would be the ideal “modus operandi” for the parties to work together as was ordered by the Court. The meeting had to be aborted due to poor attendance. The trade unions were again invited on 19 March 2013, which they also did not honour.
   • – The Government has done all in its power to ensure that the issue of the amendment of the IRA is dealt with as expeditiously as possible. However, the Government recalls that once in Parliament, the Bill will no longer be within the purview of the Executive’s control as it cannot prescribe to Parliament the manner in which it should handle the matter.
   • – However, this should not spell doom for labour relations in general and social dialogue in particular. The federation of trade unions and employer associations still enjoy their freedom of association. The only orderly thing which needs to be done urgently is promulgation of a law to enable registration of labour market federations. Unlike the case of political parties, a legislative framework for the registration of federations is being developed.
2. 709. In conclusion, the Government reiterates its commitment to facilitate the speedy amendment to the IRA to allow for the registration and amalgamations of federations. The Government is willing to work together with the social partners in finding an amicable way forward in the spirit of the Court Order. The Government also informs that the Ministry of Labour has tabled the Industrial Relations (amendment) Bill for Cabinet consideration. The Government joins a copy of the bill entitled “An Act to amend the Industrial Relations Act, 2000 to provide for the registration of federations and other incidental matters”.
3. 710. In a communication of 29 May 2013, the Government reports that the amendment of the IRA to allow for registration of federations has been approved by the Cabinet and issued through an Extraordinary Government Gazette, as Bill No. 14 of 2013 (the Bill is attached to the Government’s communication). The Government specifies that the bill was developed in consultation with the social partners through the Labour Advisory Board and will be tabled before Parliament under a Certificate of Urgency.
4. 711. Furthermore, in line with the Industrial Court’s directive in Case No. 342/12, several consultative meetings were held between Government, Workers’ and Employers’ representatives to agree on the principles that would guide the tripartite relations in the country. The said principles have been published in the Gazette as a general notice (No. 56 of 2013), (attached to the Government’s communication). According to the Government, the principles will affect the Federation of the Swazi Business Community (FESBC), the Federation of Swaziland Employers and Chamber of Commerce (FSE/CC) and the TUCOSWA and Swazi Commercial Amadoda as entities existing in terms of their own constitutions. The General Notice has force of law and is binding on the social partners. The purpose of publishing the Principles in the Gazette is to allow for its widest possible distribution and ensures that parties are guided by a binding covenant which is enforceable by law.
5. 712. Lastly, the Government indicates that the General Notice allows for the restoration of all tripartite structures. In this regard, the Government had already received a letter from the TUCOSWA advising of its decision to resume participation in all tripartite structures (letter dated 28 May 2013 attached to the Government’s communication). Consequently, the Government informs of its intention to call a meeting of the National Steering Committee on Social Dialogue to draw up a workplan on all issues pending before the Committee.

C. The Committee’s conclusions

1. 713. The Committee recalls that this case concerns allegations of the revocation of the registration of a federation by the Government and the denial through police and military forces of its right to protest against the revocation.
2. 714. The Committee takes note of the explanations provided in the Government’s communications in reply to the complainant organization with regard to the sequence of events in this case. It also takes note of the information on the steps taken with regard to the amendment to the IRA to allow for the registration and amalgamations of federations. The Committee notes in particular that the Ministry of Labour tabled the “Industrial Relations (amendment) Bill” for Cabinet’s consideration in March 2013. The said bill is entitled “An Act to amend the Industrial Relations Act, 2000 to provide for the registration of federations and other incidental matters”. The Committee takes due note of the latest communication of the Government reporting that the amendment of the IRA was approved by the Cabinet and issued through an Extraordinary Government Gazette, as Bill No. 14 of 2013. It notes that the bill was developed in consultation with the social partners through the Labour Advisory Board and is to be tabled before Parliament under a Certificate of Urgency. The Committee welcomes the abovementioned proposal for amendment which it expects will ensure full effect, in law and in practice, to Articles 2 and 5 of Convention No. 87 which provide that workers’ and employers’ organizations themselves have the right to establish and join federations and confederations of their own choosing.
3. 715. The Committee notes from the Government’s reply and the discussion in the Committee on the Application of Standards during the 102nd Session of the International Labour Conference (June 2013) with respect to the application of Convention No. 87 by Swaziland that the proposed bill is yet to be placed before the Parliament.
4. 716. The Committee expresses its deep concern that the matter concerning the TUCOSWA’s registration is yet to be resolved more than a year since its registration was nullified, thus hindering its capacity to effectively exercise its trade union rights. The Committee again urges the Government to ensure that the views of the social partners are duly taken into account in the finalization of the amendments to the IRA and that they are adopted without delay so as to ensure that federations of workers and employers may be registered and function in the country. The Committee requests the Government to indicate the specific steps taken in this regard and to provide a copy of the amendment as soon as it has been adopted.
5. 717. Meanwhile, the Committee firmly expects that the TUCOSWA will be able to effectively exercise all its trade union rights without interference or reprisal against its leaders, in accordance with the principles of freedom of association, including the right to engage in protest action and peaceful demonstrations in defence of their members’ occupational interests.
6. 718. The Committee recalls that in its previous examination of the case, it expressed its deep concern over the delay in finding a solution to the recognition and registration of the TUCOSWA and the consequences this has had for any meaningful tripartite social dialogue in the country. In this regard, the Committee takes note that in line with the Industrial Court’s directive in Case No. 342/12 several consultative meetings were held between Government, Workers’ and Employers’ representatives with respect to the principles that would guide the tripartite relations in the country. Subsequently the Government published these principles in the Gazette as a General Notice (No. 56 of 2013). The Committee notes with interest that the General Notice would appear to allow for the restoration of all tripartite structures and that the Government had received a letter dated 28 May 2013 from the TUCOSWA advising of its decision to resume participation in these structures. Consequently, the Government informed of its intention to call a meeting of the National Steering Committee on Social Dialogue to draw up a workplan on all issues pending before the Committee. The Committee takes due note of this information and firmly hopes that the restoration of the tripartite structures will allow for meaningful dialogue with the social partners in the future.
7. 719. The Committee notes that the Conference Committee on the Application of Standards called on the Government to accept a high-level ILO fact-finding mission to assess any progress made in relation to the implementation of Convention No. 87, including as regards the amendment of the IRA to allow the registration of federations and the registration of the TUCOSWA. Having learned that the Government has communicated that it is not in a position to receive a mission until the beginning of 2014, the Committee expresses its deep regret that no solution has been found to these important outstanding issues since the submission of the complaint in May 2012. The Committee strongly urges the Government to accept this mission without delay, so that it will be in a position to observe tangible progress on the matters raised in the complaint.

The Committee’s recommendations

1. 720. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee again urges the Government to ensure that the views of the social partners are duly taken into account in the finalization of the amendments to the IRA and that they are adopted without delay so as to ensure that federations of workers and employers may be registered and function in the country. The Committee requests the Government to indicate the specific steps taken in this regard and to provide a copy of the amendment as soon as it has been adopted.
   • (b) Meanwhile, the Committee firmly expects that the TUCOSWA will be able to effectively exercise all its trade union rights without interference or reprisal against its leaders, in accordance with the principles of freedom of association, including the right to engage in protest action and peaceful demonstrations in defence of their members’ occupational interests.
   • (c) The Committee notes that the Conference Committee on the Application of Standards called on the Government to accept a high-level ILO fact-finding mission to assess any progress made in relation to the implementation of Convention No. 87, including as regards the amendment of the IRA to allow the registration of federations and the registration of the TUCOSWA. The Committee strongly urges the Government to accept this mission without delay, so that it will be in a position to observe tangible progress on the matters raised in the complaint.