Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Eswatini (Ratification: 1978)

The Committee notes the information provided in the Government’s report, in particular the adoption of the Industrial Relations Act, 2000 (the Act). The Committee also notes the recent ILO technical advisory mission to the country (November 2000) during which preliminary draft amendments to the Act were prepared with the authorities.

The Committee notes with satisfaction that the definition of "employee" in section 2 of the Act no longer excludes casual workers; thus these workers are no longer excluded from the rights set out in the Convention.

In its previous comment, the Committee referred to the need to adopt a specific provision accompanied by sufficiently effective and dissuasive sanctions for the protection of workers’ organizations against acts of interference by employers or their organizations as required pursuant to Article 2 of the Convention. The Committee notes, however, that the Act contains no such provision. The Committee, therefore, recalls the need to adopt a specific provision accompanied by sufficiently effective and dissuasive sanctions for the protection of workers’ organizations against acts of interference by employers or their organizations.

The Committee also notes that the Act sets up a system of works councils (section 52) which only the employer is entitled to establish; there is also no provision setting out the manner in which the representatives of the works council are to be appointed, and the works councils may negotiate terms and conditions of employees who are not members of a trade union. In the view of the Committee, such a system may give rise to employer interference and undermine the role of representative trade unions, and does not promote collective bargaining with workers’ organizations as envisaged in Article 4 of the Convention. The Committee notes that a preliminary draft amendment of section 52 was prepared within the framework of the technical advisory mission. The Government is requested to take measures to ensure that there is sufficient protection against employer interference in the creation and functioning of works councils as well as against collective bargaining with non-unionized workers where there is a sufficiently representative trade union.

The Committee notes further that the Act provides for mandatory recognition where the trade union seeking recognition has as members over 50 per cent of the employees of the unit concerned, and provides for recognition at the discretion of the employer where the union has less than 50 per cent (section 42). The Committee recalls its previous comments in this regard, that if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to the unions in the unit, at least on behalf of their own members.

The Committee hopes that the legislation will be brought into full conformity with the requirements of the Convention in the near future.