Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

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

The Committee notes the information provided in the Government's report as well as the statement made by the Government representative to the 1996 Conference Committee and the discussion which took place therein. The Committee also notes with interest that, at the request of the Government, an ILO direct contacts mission took place in the country from 30 September to 4 October 1996.

The Committee notes that a new Industrial Relations Act was adopted in 1996. While noting with interest that the teaching sector has been deleted from the list of essential services where strikes could be prohibited, as had been requested in previous comments, the Committee notes that this Act perpetuates most of the previous discrepancies between the legislation and the provisions of the Convention. Moreover, it points out that the 1996 Act contains new provisions which contravene even further some of the provisions of the Convention. In particular, the Committee would refer to section 40(3) of the Act which prohibits a federation or any of its officers from causing or inciting the cessation or slow-down of work or economic activity upon punishment of imprisonment contrary to Articles 3 and 6 of the Convention and the principle of the right to strike.

The Committee would also point out that the following discrepancies between the legislation and the provisions of the Convention have not been rectified in the new Act:

Article 2 of the Convention

- Non-recognition of the right of association of prison staff (section 91(c) of the Act);

- obligation upon workers to organize within the context of the industry in which they exercise their activity (section 27 of the Act);

- power of the Labour Commissioner to refuse to register a trade union if he or she is satisfied that an already registered organization is sufficiently representative (section 30(5) of the Act).

Article 3

- Limitation of the activities of federations to that of providing advice and services (section 40 of the Act);

- prohibition of the right to strike in the broadcasting sector (section 73(6) of the Act);

- power of the Minister to apply to the court to enjoin any strike or lockout if he or she considers that the "national interest" is threatened; and

- important restrictions of the rights of organizations to hold meetings and peaceful demonstrations (section 12 of the 1973 Decree on Meetings and Demonstrations).

Furthermore, the Committee notes that the new Act contains the following additional restrictions on the rights provided under this Article of the Convention:

- the prohibition of picketing directed at an establishment or undertaking not directly involved in a dispute (section 87(1)(e) of the Act);

- strike ballots conducted by the Commissioner of Labour and the requirement that a majority of the employees concerned approve such action (section 66(1)(b)) (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 170: the Committee considered that account should be taken only of the votes cast);

- penal sanctions have been introduced with respect to various "unlawful" forms of industrial action under sections 69(2), 72(3), 73(3-5), 74 and 87(3), including with respect to restrictions which are in violation of the principle of the right to strike;

- the power of the court to limit the non-occupational activities or wind up an organization or federation which has devoted more funds and more of the time of its officers to campaigning on issues of public policy or public administration than to protecting the rights and advancing the interests of its members (section 42(2));

- the power of the court to cancel or suspend registration of any organization taking strike action which is not in conformity with the Act, even for simple procedural violations (section 69(1)(b)).

The Committee cannot but regret that the Industrial Relations Act of 1996, taken as a whole, has actually diminished the protection to be afforded to workers' organizations under the Convention, despite the comments it has been making for over a decade. The Committee requests the Government to take the measures necessary to amend the Act in the very near future so as to bring it into full conformity with the provisions of the Convention and would point out that the technical assistance of the ILO is available in this respect.

[The Government is requested to provide full particulars to the Conference at its 85th Session.]