Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

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

With reference to its observation, the Committee notes with interest the amendments made to section 40 of the Industrial Relations Act regarding balloting requirements and supervision of the ballot by the Conciliation, Mediation and Arbitration Commission (CMAC), in respect of peaceful protest actions. The Committee also notes with interest that organizations are no longer responsible for public safety during the protest action, as section 40(1)(c) stipulates that notice must be given to the authorities responsible for public order so that the necessary measures can be taken to ensure the safety of protesters and the public. The Committee also notes with interest that section 40(5) requiring the employer to provide a list of the relevant employees to the Commission prior to a ballot has also been repealed.

The Committee also draws the Government’s attention to the points raised in its previous direct request, which read as follows:

The Committee notes that the definition of the term "undertaking" continues to exclude domestic workers (section 2). The Committee again requests the Government to provide information on the impact of the rights under the Convention for domestic workers given their exclusion from the term "undertaking". The Committee also requests to be kept informed of any exemptions from the operation of the Act made by the minister pursuant to section 5.

The Committee notes the allegations raised in Case No. 2019 before the Committee on Freedom of Association regarding the Government’s intention to introduce a Media Council Bill and a Civil Servants Bill aimed at denying freedom of expression and the rights of journalists and civil servants, respectively. While taking note of the Government’s reply in Case No. 2019, the Committee requests the Government to keep it informed of the progress of these Bills through the legislative process, and to provide copies of the Bills to the Office as soon as possible so that their compatibility with the Convention can be assessed.

  Article 3 of the Convention. The Committee notes that in order to register, the constitution of an organization has to contain a number of provisions, including that subject to the terms of the Act and the constitution of the organization, only paid-up members may vote in the election of officers, nominate a candidate for any office, be nominated for, or be elected to any office, or express views on candidates and other issues (section 29(1)(i)). The Committee requests the Government to take measures to ensure that any such restrictions placed on the nomination of candidates and eligibility for office are left to the rules of the organization concerned, in keeping with the right of workers’ and employers’ organizations to draw up their rules and elect their representatives in full freedom.

The Committee notes that pursuant to the Act, there must be a strike ballot before a strike can be taken lawfully (section 86), and responsibility for arranging and supervising the ballot rests with the CMAC. The Committee suggests that where such supervision takes place, it is at the request of the workers or their organizations, to ensure that workers’ organizations are able to organize their activities and formulate their programmes without interference from the public authorities. The Committee also requests the Government to provide details concerning the practical application of section 86(4) requiring that the employer provide a list to the Commission of the relevant employees prior to a ballot concerning strike action at the enterprise.

With respect to sanctions for taking strike action, while noting that imprisonment can no longer be imposed for unlawful industrial action, the Committee requests the Government to clarify the effect of section 97(1) providing that criminal proceedings may be brought against certain persons where there is reasonable cause to believe that an offence under the Act has been committed by a corporate body. The Committee also requests a copy of the relevant penal provisions that may apply. The Committee also notes section 87 which allows an employer to dismiss an employee during a strike for reasons based on the employer’s operational requirements, and draws to the Government’s attention the need for adequate protection to ensure that this provision is not used to undermine legitimate strike action. The Committee also notes that workers may be summarily dismissed if strike action is taken that is not in conformity with the Act (section 88). In many cases such a sanction would be disproportionate to the seriousness of the violation (particularly in the light of the complex and lengthy dispute settlement procedures).

The Committee notes that while the general definition of "essential services" complies with that accepted by the Committee, a list of services which are deemed to be essential is also set out, and includes, inter alia, sanitary services. The Committee notes that sanitary services should not be considered essential in the first instance, though they may become essential due to the extent and duration of the strike (see General Survey on freedom of association and collective bargaining, 1994, paragraph 160). However, while not essential services in the strict sense of the term, sanitary services do constitute a public utility; therefore, the Government may want to consider the establishment of a minimum service in sanitary services with workers’ organizations and employers participating in the definition of such service (1994 General Survey, paragraphs 160-161).

The Committee notes that while there is no longer an express prohibition of sympathy action in the Act, due to the definition of "protected strike", sympathy action appears to continue to be prohibited. The Committee requests the Government to address this matter in its next report.