Report in which the committee requests to be kept informed of development - Report No 321, June 2000

Case No 2019 (Eswatini) - Complaint date: 30-MAR-99 - Closed

Allegations: Violations of the right to bargain collectively, persistent violation of trade union rights through unamended labour legislation and the introduction of new restrictive bills

1. 394. In a communication dated 30 March 1999, the Swaziland Federation of Trade Unions (SFTU) submitted a complaint of violations of freedom of association against the Government of Swaziland.
2. 395. The Government transmitted its reply in a communication dated 2 May 2000.
3. 396. Swaziland has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 397. In its communication dated 30 March 1999, the SFTU alleges that the Government has violated Articles 2 and 3 of Convention No. 87, Articles 1 and 2 of Convention No. 98, as well as sections 43, 47, 79 and 82 of the current Industrial Relations Act No. 1 of 1996.
2. 398. The complainant asserts that it is normal practice that, in February or March of each year, the Government appoints and mandates its negotiation team to engage in the collective bargaining process with all associations within the public service, including the Teachers' Association, the Civil Servants' Association and the Nurses' Association.
3. 399. On the first day of negotiations, the Government team came up with a proposal which was, in the view of the associations, very low and the parties agreed to part in order to recharge their mandates. At this juncture, there was no deadlock and no dispute reported by either party.
4. 400. On 17 March 1999, the Minister for Public Service and Information announced that individual civil servants, teachers and nurses must come and sign a form if they accept the Government's offer outside their associations. The offer being referred to was the same offer on the basis of which the parties had agreed to adjourn the negotiations and consult. Newspaper clippings to further corroborate the fact that the Minister resorted to an individual appeal was attached to the complaint.
5. 401. The complainant asserts that this action on behalf of the Minister was a flagrant violation of Conventions Nos. 87 and 98 and a ploy to marginalize or destroy organized labour in Swaziland.
6. 402. Subsequently, the Government went to the media to call continuously for individuals to fill in forms accepting the offer. The Government further clandestinely organized non-members within the SNACS (Civil Service Association) to write a petition. Only 91 employees of the 11,000 in the civil service signed the petition which the Minister claimed was legitimately mandating him to take this kind of action.
7. 403. The associations took the Government to court on this issue and the case is currently ongoing.
8. 404. Furthermore, the complainant alleges that the Minister for Enterprise and Employment has made a public statement (a copy of which was attached to the complaint) which proves that the Government is not committed to its promise to the ILO in respect of the Industrial Relations Bill of 1998. Finally, the complainant alleges that the Government continues to enact laws and orders impinging on fundamental freedoms. The SFTU recalls in this regard the 1996 Industrial Relations Act and the 1973 Decree which have been the subject of a previous complaint and the introduction of a Media Council Bill allegedly designed to deny the freedom of expression and the rights of journalists and a Civil Servants Bill designed to deny all public servants the right to make statements to the media.

B. The Government's reply

1. 405. In its communication dated 2 May 2000, the Government states firstly as concerns the Media Council Bill, that the allegation made by the complainant is not clear as to which specific ILO standards would be violated by which specific provisions of the Bill if it were to be passed by the Parliament of Swaziland in its present form. The absence of clear information thus deprives the Government of the opportunity to address the complaint in more detail.
2. 406. As concerns the Civil Servants Bill, the Government indicates that there is no such Bill and therefore the allegation in the complaint is evidently unfounded.
3. 407. In respect of the current Industrial Relations Act (IRA) of 1996, the Government recalls that there has already been much debate on the extent to which this Act is perceived to be in violation of some ILO standards (see Case No. 1884). It is therefore not clear to the Government why it has to be brought up as a fresh complaint. To some extent the formulation of the new Industrial Relations Bill (IRB) (No. 13) is based on the effort to make industrial relations conform to these international labour standards. The Government considers that there is no justification for reviving this issue in another case as if there is another violation of these standards. The recommendations of the CFA and indeed those of the Application of Standards Committee were taken on board in every legislative structure when the Industrial Relations Bill was being processed to become law. A lot of progress has been made already with this Bill passing through both houses of Parliament and now only awaiting assent by the Head of State.
4. 408. The Government also indicates that it has already responded to the Committee on the Application of Standards that the 1973 Decree on meetings and demonstrations was never intended to apply in the case of workers. This Decree does not include workers at all and the Industrial Court in the case of Swaziland Manufacturing and Allied Workers Union v. the Commissioner of Police (Industrial Court Case No. 1 of 1988) helped elucidate this point. The Government further recalls that the new IRB has introduced new provisions which would clear up misconceptions regarding the operation of the Decree of 1973 as far as trade unions are concerned.
5. 409. As concerns the allegations of government interference in the negotiation process with public service associations, the Government considers that the matter was reported rather prematurely to the ILO. Had the complainant waited for the outcome of the court proceedings, they would not have found any need to report the issue since it was finally conclusively dealt with by the relevant court and the Government of Swaziland was bound by the decision (see SNAT, SNACS and SNA v. Swaziland Government - case 67/99 (IC)). The Government considers that this proves the maturity and independence of dispute resolution in Swaziland.
6. 410. The Government concludes that, through tripartite participation, Swaziland has taken the necessary strides to build up the necessary consensus and that the 1998 Industrial Relations Bill is one of the main fruits for such tripartite cooperation. The ILO certainly has a critical role to play in harnessing this culture through providing the necessary technical support.

C. The Committee's conclusions

1. 411. The Committee notes that this case concerns allegations of government interference in the right to bargain collectively and the continuing violation of trade union rights in the law and practice of Swaziland.
2. 412. As concerns the allegations of government interference in the negotiation process with the public service associations through the call of the Minister for Public Service and Information upon individual employees to accept the offered terms, as well as the attempts to organize a petition to legitimize this action, despite the fact that the negotiation process was under way, the Committee recalls that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent. Moreover, all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights, and priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service. (See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 782 and 793.) The Committee notes in the case at hand that the negotiations were carried out not only with the Civil Servants' Association, but also with the association for teachers and that for nurses (neither of which can be considered to be public servants engaged in the administration of the State). Moreover, the Swaziland Industrial Relations Act (IRA) makes no distinction between types of public employees for the purposes of collective bargaining and the definition of the term "employer" in the IRA includes Government.
3. 413. The Committee observes that, after what appears to be a very short time since the commencement of the negotiations, rather than pursuing the negotiations or reporting a dispute to the Labour Commissioner in accordance with the disputes procedure mechanism provided for in the law, the Minister for Public Service and Information decided to sidestep the duly recognized unions and appeal directly to the workers. While noting from the Government's reply that this matter has been conclusively dealt with by the relevant court, the Committee must nonetheless conclude that given the apparent absence of any steps by the Government to attempt to resolve the matter with the unions the Minister's action in this case cannot be considered as encouraging and promoting collective bargaining and thus urges the Government to avoid having recourse to such action in the future. Furthermore, the Committee requests the Government to transmit a copy of the court judgement in this case referred to in its reply.
4. 414. As concerns the general allegation that the Government is not committed to its promise to enact the 1998 Industrial Relations Bill, as well as the presentation of new bills which restrict the freedom and rights of journalists and civil servants, the Committee first notes with deep regret that the 1998 Industrial Relations Bill has still not entered into force. Indeed, as recalled by the Government, the Committee had observed numerous and grave discrepancies between the 1996 Industrial Relations Act and the provisions of Conventions Nos. 87 and 98 in its examination of an earlier complaint against Swaziland (Case No. 1884, 306th Report, paras. 619-705). In June 1998, the Committee had noted with interest the efforts made by the Government, in consultation with the social partners and with the assistance of the ILO, to revise the Industrial Relations Act in order to bring it into conformity with the principles of freedom of association and urged the Government to ensure that the proposed Industrial Relations Bill was adopted in the near future (see 310th Report, paras. 576-591). The Committee now notes from the Government's reply that, while having passed through both houses of Parliament, this Bill is still awaiting assent by the Head of State.
5. 415. The Committee must therefore recall that under present law, certain basic trade union rights, including the right for federations to take industrial action and to carry out legitimate trade union activities, are prohibited under penalty of imprisonment ranging from one to five years. Furthermore, while noting the Government's statement that the 1973 Decree on meetings and demonstrations was never intended to apply to workers, the Committee recalls that, during its examination of an earlier complaint against Swaziland, the Committee had noted from the report of the direct contacts mission in 1996 that section 12 of this Decree had been evoked by the Police Commissioner to justify police presence at trade union meetings so as to ensure that they were not being used as fronts for outlawed political opposition groups. In the absence of legislative protection to the contrary, the Committee must retain its previous conclusion that section 12 of the 1973 Decree places a serious threat on the rights of organizations to hold meetings and peaceful demonstrations (306th Report, para. 694). The Committee once again urges the Government to take the necessary measures as a matter of urgency to ensure that the 1998 Industrial Relations Bill comes into force without delay so as to ensure full respect for the principles of freedom of association. The Government is requested to keep the Committee informed of the progress made in this regard. As concerns the Media Council Bill and the Civil Servants' Bill referred to in the complaint, the Committee takes due note of the information provided in the Government's reply and draws this matter, as well as the status of the Industrial Relations Bill, to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

The Committee's recommendations

1. 416. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) In concluding that the Minister's action to sidestep ongoing negotiations with the public service and make individual appeals to employees cannot be considered as encouraging and promoting collective bargaining, the Committee urges the Government to avoid having recourse to such action in the future. Furthermore, the Committee requests the Government to transmit a copy of the court judgement in this case.
   • (b) The Committee urges the Government to take the necessary measures as a matter of urgency to ensure that the Industrial Relations Bill comes into force without delay so as to ensure full respect for the principles of freedom of association. The Government is requested to keep the Committee informed of the progress made in this regard.
   • (c) As concerns the Media Council Bill and the Civil Servants' Bill referred to in the complaint, the Committee would draw this matter, as well as the status of the Industrial Relations Bill, to the attention of the Committee of Experts on the Application of Conventions and Recommendations.