Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

Comments from employers’ and workers’ organizations. The Committee notes the comments made by the International Organisation of Employers (IOE) on the right to strike, in a communication dated 29 August 2012, which are dealt with in the General Report of the Committee.

The Committee notes the communication dated 31 July 2012 from the International Trade Union Confederation (ITUC) concerning the issues under examination, as well as allegations of continued repression of trade union activities in practice throughout the period under review, and reports on police brutality and harassment against trade unionists, including trade union leaders of the Swaziland Federation of Trade Unions (SFTU), the Swaziland Federation of Labour (SFL) and the Swaziland National Association of Teachers (SNAT), and the arrest and expulsion of officials from the Congress of South African Trade Unions (COSATU). The Committee also notes the comments dated 29 August and 25 September 2012 from the Trade Union Congress of Swaziland (TUCOSWA) on the implementation of the Convention in practice, on the exercise of trade union activities in the country under a repressive and tense atmosphere and without any meaningful social dialogue, and on the non-recognition and purported deregistration of the TUCOSWA by the Government. In view of the continued and long-standing comments from national and international trade unions on the exercise of trade union rights in the country, the Committee cannot but firmly recall that rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations. The Committee urges the Government to ensure that this principle is respected and requests it to provide its reply to the serious allegations of the ITUC and the TUCOSWA. Furthermore, recalling that Article 5 of the Convention recognizes the right of workers’ organizations to establish or to join federations and confederations of their own choosing, the Committee requests the Government to take all necessary steps to proceed to the registration of TUCOSWA, including legislative measures if necessary.

Legislative issues. In its previous comments, the Committee noted that the Public Service Bill was being debated in both Houses of Parliament, after the social partners were given the opportunity to lobby the Senate on July 2011, and the assistance of an ILO expert which gave a presentation at the request of the Senators on August 2011. The Committee notes from the Government’s report that the Bill could not be passed into law in the time required and that the process has since been reinitiated. The Government specifies that the Public Service Bill has been republished in a Government Gazette as Bill No. 4 of 2012 and is now open to the public for consultations and inputs, which gives an opportunity for further consultations with stakeholders. The Bill was further circulated to the Labour Advisory Board and will form part of its agenda. The Committee requests the Government to provide information on the progress made to adopt the Public Service Bill and expresses the firm hope that it will be in full conformity with the provisions of the Convention with regard to trade union rights of public service workers. The Committee requests the Government to transmit a copy of the Bill once it is promulgated into law.

In its previous comments, the Committee noted the entry into force of the Industrial Relations (Amendment) Act of 2010 (Act No. 6 of 2010) which amended a number of provisions of the Industrial Relations Act (IRA), upon which the Committee had been commenting for many years. However, the Committee recalled that it has been requesting the Government to amend its legislation on other pending legal issues.

Determination of a minimum service in sanitary services. The Committee recalls that it has been requesting the Government for many years to amend the IRA to recognize the right to strike in sanitary services, and establish only a minimum service with the participation of workers and employers in the definition of such a service. In its previous comments, the Committee observed that Act No. 6 of 2010 provides for a clear definition of “sanitary services” in its section 2 and that the Essential Services Committee had engaged in discussion with the trade union and the staff association on the determination of the minimum service that should be provided. The Committee notes from the Government’s report that section 2 of the IRA has been amended to allow for the establishment of a minimum service in sanitary services and that the Essential Services Committee held a number of meetings with the sanitary services trade unions. The Government indicates that the trade unions needed time to consult with other branches in other towns and city councils and are expected to present a proposed minimum service to the Essential Services Committee. The Committee requests the Government to provide information on the final outcome of discussions engaged with the social partners with respect to the determination of the minimum service to be afforded for sanitary services.

Civil and criminal liabilities of trade union leaders. The Committee recalls that in its previous comments it requested information on the effect given in practice to section 40 of the IRA with regard to the civil liability of trade union leaders and, in particular, the charges that may be brought under section 40(13) (civil liability of trade union leaders), as well as the effect given to section 97(1) (criminal liability of trade union leaders) of the IRA by ensuring that penalties applying to strikers do not in practice impair the right to strike. The Committee notes from the Government’s report that a proposal to amend both sections 40 and 97 of the IRA was tabled to the Labour Advisory Board on 8 May 2012 and that social partners are consulting on the issues and are expected to come back shortly to the board with their proposals. The Committee requests the Government to provide information on all progress made to amend sections 40 and 97 of the IRA.

Right to organize for prison staff. The Committee recalls its previous comments on 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 notes from the Government’s report that the Ministry of Justice and Constitutional Affairs tabled the draft Correctional Services (Prison) Bill to the Social Dialogue Committee on 13 July 2011 but that the said committee could not deliberate on the proposed Bill which was then submitted to Cabinet. However, Cabinet directed that the social partners should be given an opportunity to make their input to the draft text which was circulated to the Labour Advisory Board on September 2012. The Committee requests the Government to provide information on all progress made to adopt the Correctional Services (Prison) Bill in order to guarantee the right to organize for prison staff.

Other pending issues concerning legal acts and proclamation. The Committee recalls that its comments also concerned a number of legal acts and proclamation which gave rise to practices contrary to the provisions of the Convention. The Committee takes note of the technical assistance provided by the Office in order to review the provisions of these texts, namely the 1973 Proclamation and its implementation regulations, the Public Order Act of 1963 and the 2005 Constitution of the Kingdom of Swaziland, and to make recommendations for corrective measures where needed. The ILO consultancy took place in 2011 and the report on proposed legislative amendments was circulated to the social dialogue committee on January 2012. It was reported that the said committee reviewed the report several times between February and March 2012. The Committee notes however that, according to the Government, further discussions on the issue were cancelled at the request of the trade unions due to other domestic issues they wanted to deal with. The Committee takes due note of the Government commitment to endeavour to resume the discussions with the social partners in the framework of the social dialogue committee on the recommendations made pursuant to the ILO consultancy and firmly hopes that the Government will be able to report in the near future on progress made on the pending issues:

• -The 1973 Proclamation and its implementing regulations. In relation to the status of this Proclamation, the Committee previously observed from the 2010 high-level tripartite 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. The Committee also took note of the “Attorney-General’s Opinion” which stated that “on the coming into force of the Constitution, the Proclamation died a natural death”. The Committee notes that the Government maintains in its report that there is no state of emergency in Swaziland. The Government adds that the Decree No. 2 of the King’s Proclamation was introduced for a period of six months and was extended by the Continuation of Period Order of 1973. However, the Detention Order of 1978 – which introduced the 60 days detention without trial or appearing before Court – repealed the Continuation of Period Order of 1973. Furthermore, the Detention (Repeal) Decree of 1993 repealed the Detention Order of 1978. Finally, the Government asserts that the Constitution of 2005, once promulgated, became the supreme law and any other law inconsistent with it is null and void to the extent of its inconsistency. The Committee requests the Government to indicate the outcome of discussions with the social partners and any measures taken thereof in relation to the status of the 1973 Proclamation.
• -The 1963 Public Order Act. The Committee has been requesting the Government for a number of years 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 previously noted from the conclusions of the 2010 high-level tripartite 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. The Committee observes that in its report, the Government indicates that the ILO report following the consultancy recommended that the Act be amended and that the Government will submit the proposal to the social dialogue committee. The Committee requests the Government to provide information on the outcome of the discussions in the social dialogue committee on the amendment of the 1963 Public Order Act and on any measures taken thereof in order to ensure that the Act is not used in practice to interfere in trade union meetings or protest actions.

The Committee notes that the ILO technical assistance has also resulted in the drafting by the Government of a code of good practice for protest and industrial action, which is being submitted to the Office for comments. The Committee requests the Government to provide information on any progress made to adopt the code of good practice for protest and industrial action and to provide a copy.

Finally, while acknowledging the Government’s commitment to pursue its efforts in order to address all remaining issues on the application of the Convention in line with its long-standing requests, the Committee cannot but firmly hope that the Government will provide in its next report information on concrete progress made. The Committee also reminds the Government of its duty, under the Convention, to take all appropriate measures to guarantee that trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind.

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