Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

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 report, as well as the Industrial Relations Act, 2000 (the Act).

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 must 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.

Right to strike.  The Committee notes that pursuant to the Act, there must be a ballot before a strike can be taken lawfully (section 86), and responsibility for arranging and supervising the ballot rests with the Conciliation, Mediation and Arbitration Commission (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 requirement that the employer is to provide a list of the relevant employees prior to a ballot (section 86(4)) in the light of the fact that this provision should not be able to be used to allow employers to determine which specific employees are seeking to take strike action, which may give rise to victimization.

With respect to sanctions for taking strike action, while noting with satisfaction 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 body corporate. 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 employers’ 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 1994 General Survey on freedom of association and collective bargaining, 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 (General Survey, op. cit., paragraphs 160-161).

The Committee notes that, although the Act now permits peaceful protest action (section 40), mandatory prerequisites similar to those required for a strike in furtherance of a trade dispute are set out, and it considers such prerequisites are generally not conducive to the exercise of the right to take protest action. With respect to the balloting requirements, which the Committee considers to be excessive in the context of protest action, the Committee suggests that if a balloting requirement is maintained, consideration be given to requiring a majority vote by the affiliated unions where a federation calls for protest action as set out in the preliminary draft amendments to the Act prepared in the course of the recent ILO technical advisory mission. The Committee also notes that as in the case of trade disputes, responsibility for arranging and supervising the ballot rests with the CMAC. The Committee again suggests that where such supervision takes place, it is at the request of the workers or their organizations, in keeping with the right of workers’ organizations to organize their activities and formulate their programmes without interference from the public authorities. The Committee again requests the Government to provide details concerning the requirement that the employer is to provide a list of the relevant employees prior to a ballot in the light of the fact that this provision should not be able to be used to allow employers to determine which specific employees are seeking to take strike action, which may give rise to victimization. The Committee also notes that requiring the party intending to take action to state the measures taken to ensure the safety of protesters, implies that the organizations are fully responsible for public safety during protest action, whereas normally this would be the responsibility of the public authorities. The organization must also serve notice on the employer or employers’ organization concerned, which, if this involves serving notice on each individual employer who might be affected by the action, would be another onerous prerequisite.

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.