Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

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 regarding the enactment of the Industrial Relations Act, 1996 (Act No. 1 of 1996).

Scope of application. The Committee notes that arising from the definition of an "employee" in section 2, the provisions of the Industrial Relations Act in Part IV regarding collective bargaining and Part IX regarding freedom of association and the right to organize, do not protect casual employees. The Committee requests the Government to indicate whether and to what extent casual workers can be represented by a trade union taking part in collective bargaining.

Article 2 of the Convention. Whilst noting the Government's indication in its report that section 82 of the Industrial Relations Act ensures that workers are protected against interference by public officers, the Committee regrets that the new Act has not given effect to the comments it made in its previous observations concerning this issue. 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.

Article 4 of the Convention. The Committee notes with interest that the power to refuse to register a collective agreement on the grounds that it is inconsistent with government directives on wages and wage levels, which was the subject of previous observations, has not been maintained in the Industrial Relations Act.

Regarding the levels of bargaining, pursuant to section 40 of the Industrial Relations Act, federations do not seem to be able to take part in collective bargaining. The Committee recalls that the right to bargain collectively should also be recognized with respect to federations and confederations (see 1994 General Survey, op. cit., paragraph 249). In addition, it appears that pursuant to section 45(4) bargaining at the industry level cannot take place unless the Commissioner of Labour considers the establishment of a Joint Industrial Council to be "desirable or practicable". The Committee points out that, since the Convention contemplates voluntary collective bargaining, the choice of the bargaining level should normally be made by the partners themselves.

Noting that the Industrial Relations Act provides for exclusive recognition rights of a union representing more than 50 per cent of employees in a unit, and provides for recognition at the discretion of the employer where 50 per cent or less are represented, the Committee stresses the importance of promoting further the rights of minority unions where no union or group of unions has majority support, to enable them to negotiate an agreement at least on behalf of their own members.

The Committee notes that section 42 limits the ability of an organization or federation to devote more than a certain amount of time and funds to issues of public policy or public administration, one of the possible penalties for which is the suspension of exclusive bargaining rights. The Committee refers to its comments on this issue in its 1996 observation on Convention No. 87.

The Committee requests the Government to take the measures necessary to amend the Industrial Relations Act so as to bring it into full conformity with the provisions of the Convention, and points out that ILO technical assistance is available in this regard.