Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

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 reports and the comments, dated 27 August 2010, of the International Trade Union Confederation (ITUC) concerning the issues under examination, as well as allegations of government interference in union affairs and further elaboration around the 2010 May Day incident. The Committee takes note of the comments made by the Government to the ITUC allegations and in particular its assurances that the public service enjoys the freedom of association and right to organize in terms of the Industrial Relations Act, 2000 (as amended) and that as a result, four unions are active and recognized: the Swaziland National Association of Teachers (SNAT), the Swaziland National Association of Government Accounting Personnel (SNAGAP), the Swaziland National Association of Civil Servants (SNACS) and the Swaziland Nurses Association (SNA). According to the Government, these unions bargain with the Government collectively and freely without intimidation. In light of the allegations made by the ITUC that the Public Service Bill currently before Parliament infringed the organizational rights of public sector workers, the Committee requests the Government to indicate the impact that this Bill might have on the rights of public service workers under the Convention and to transmit a copy of the Bill.

The Committee notes the discussion which took place in the Conference Committee in June 2010. The Committee observes that the Conference Committee continued to raise its concern over the lack of progress made on matters that had been raised for many years now and had thus decided to place its conclusions once again in a special paragraph. Further, observing that the Conference Committee had urged the Government to accept a high-level tripartite mission, in order to assist the Government in bringing the legislation into full conformity with the Convention, to inquire into the 2010 May Day incident and to facilitate the promotion of meaningful and effective social dialogue in the country, the Committee welcomes the Government’s acceptance of this mission, which visited the country from 25–28 October 2010. The Committee notes the report of this tripartite mission, its conclusions and recommendations.

The Committee notes with interest from the mission report that certain provisions of the Industrial Relations Act (IRA), upon which it has been commenting for many years, have been amended by the House of Assembly and Senate, were awaiting royal assent and should be shortly promulgated into law. In particular, the Committee observes that Industrial Relations (Amendment) Bill No. 6 of 2010 would appear to:

–      provide for the right to organize for domestic workers, by including domestic service in a household or a private house within the definition of “undertaking” (section 2(b) and (c) of the Bill);

–      remove the restrictions on the nomination and eligibility of candidates for trade union office in section 29(1)(i) of the IRA;

–      ensure that the supervision of strike ballots by the Conciliation, Mediation and Arbitration Commission (CMAC) provided for in section 86 of the IRA may only occur upon request by an organization in terms of its statute or constitution; and

–      shorten the compulsory dispute settlement procedures provided in section 85(4) of the IRA by limiting the period for arbitration to 21 days.

The Committee observes from the latest information provided by the Government that the Bill has received royal assent and is now published as the Industrial Relations (Amendment) Act No. 6 of 2010. The Committee trusts that the Amendment Act fully addresses the abovementioned issues and requests the Government to transmit a copy of the IR (Amendment) Act No. 6 of 2010.

As regards its previous request that the Government amend the IRA to recognize the right to strike in sanitary services (at present banned by IRA section 93(9)), and establish only a minimum service with the participation of workers and employers in the definition of such a service, the Committee observes that the Bill provides for a clear definition of “sanitary services” in section 2. It further understands from the mission report that the Government intends to have discussions with the social partners within the framework of the Essential Services Committee for the determination of the minimum service that should be provided with respect to sanitary services. The Committee notes from the latest information provided by the Government that the Essential Services Committee has discussed this issue with the trade union and the Staff Association. The Committee requests the Government to provide information on the discussions held in this regard and the final outcome with respect to the determination of the minimum service to be afforded for sanitary services.

Finally, noting from the Government’s report that a proposal to amend section 40 (civil liability of trade union leaders) and section 97(1) (criminal liability of trade union leaders) of the IRA would be brought before the Labour Advisory Board before June 2011, the Committee requests the Government to provide information on all progress made in this regard.

As regards the need to take measures to amend the legislation so as to guarantee for prison staff the right to organize in defence of their economic and social interests, the Committee recalls that in its previous comments it had noted the Government’s indication that consultations had already been initiated to review the Prisons’ Act. The Committee further notes from the mission report that the Supreme Court judgment in relation to the organizational rights of the Correctional Services Union refers to the possibility of adopting appropriate legislation for these workers to enjoy their rights under the Convention, with the exception of the right to strike. Noting from the Government’s latest report that a zero draft of the Correctional Services Bill was being developed, the Committee urges the Government to consult rapidly the social partners on the measures required in this regard and to propose the necessary legislative amendments without further delay.

Furthermore, the Committee recalls that its previous comments referred to the following legal acts and proclamations which gave rise to practices contrary to the provisions of the Convention:

–      The 1973 Proclamation and its implementing regulations. The Committee takes note of the information provided by the Government in relation to the status of this Proclamation and in particular the “Attorney-General’s Opinion”, which states that “on the coming into force of the Constitution, the Proclamation died a natural death”. The Committee observes, however, from the mission report that, despite assurances of the Government to the contrary, the social partners considered that there remained a certain ambiguity and uncertainty in respect of the residual existence of the Proclamation. In line with the mission’s recommendations, the Committee would request the Government to take all necessary steps to clarify that all provisions of the 1973 Proclamation were now null and void.

–      The 1963 Public Order Act. The Committee recalls that in its previous comments it had requested the Government to take the necessary measures to amend the Act so as to ensure that it could not be used to repress lawful and peaceful strike action. The Committee observes from the conclusions of the mission that, despite the provisions exempting trade union meetings from the scope of the Act, it appeared that the Act was resorted to in respect of trade union activities if it was considered that these activities included matters relating to broader calls for democratic reforms of interest to trade union members. In this respect, the Committee observes that the ban on displaying any flag, banner or other emblem signifying association with a political organization or with the promotion of a political object, which was added to the Act in 1968, apparently has affected the right of trade unions carry out peaceful protest actions. The Committee observes from the latest information provided by the Government that the Ministry of Labour and Social Security was invited to a meeting between the police and the trade unions on 16 November 2010 in preparation for a protest action the following day. The Government indicates that it views the Ministry’s participation at these consultation meetings as a positive development. The Committee requests the Government to provide information on the steps taken to ensure that the 1963 Public Order Act is not used in practice to repress lawful and peaceful strike action, including any police guidelines or other instructions that may be elaborated to this end, as well as to indicate the measures taken to amend the Act where its provisions may have given rise to undue interference in trade union meetings or protest actions.

The Committee notes with grave concern from the Conference Committee discussion and the mission report the serious disruption of the 2010 May Day demonstrations, the series of arrests and finally the death in custody of a participant in the demonstrations who had been arrested for wearing a t-shirt with the name of a political organization proscribed under the 2008 Suppression of Terrorism Act. The Committee observes that the Government immediately appointed a coroner to carry out an official investigation into the circumstances surrounding this death and requests the Government to provide a copy of the coroner’s report as soon as it is concluded.

The Committee is raising other points in a request addressed directly to the Government.