Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Eswatini (Ratification: 1978)

The Committee notes the Government’s report. It further notes the observations received from the International Confederation of Free Trade Unions.

1. Article 2 of the Convention. In its previous comments, the Committee referred to 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 as required pursuant to Article 2 of the Convention. The Committee notes, however, that the Government considers that sections 39, 42, 98, 99, 100 and 101 of the Industrial Relations Act of 2000 (the Act) and sections 35 and 36 of the Employment Act of 1980 provide for sufficient protection. The Committee notes that the provisions mentioned by the Government do not expressly provide for the prohibition of all acts of interference, as required by Article 2 of the Convention. The Committee once again stresses that, to ensure the application in practice of Article 2, the legislation should contain an express provision in this respect, coupled with effective and dissuasive sanctions against acts of interference. The Committee therefore reiterates its request.

2. In its previous observation, referring to section 52 of the Act, the Committee requested the Government to take measures to ensure that there was sufficient protection against employers’ interference in the creation and functioning of works councils as well as against collective bargaining with non-unionized workers where there was a sufficiently representative trade union. The Committee notes with interest that section 52 of the Act was amended so as to ensure that the establishment of a works council in an undertaking no longer depends on the free will of an employer, as new section 52(1) requires an employer to establish one if his enterprise employs 25 or more employees. Furthermore, according to section 52, as amended, once a trade union has obtained its recognition, the enterprise works council loses its right to negotiate a collective agreement.

3. Article 6. The Committee previously noted that, according to section 42 of the Act, where the union has less than 50 per cent of employees, recognition of the union as employees’ representative is at the discretion of the employer. While noting the Government’s statement that, although the Act provides for recognition of workers’ organizations on attainment of 50 per cent or more, in practice employers are encouraged to accord voluntary recognition in the bargaining unit concerned, the Committee nevertheless requests the Government to take the necessary measures in order to adopt a specific legislative provision so as to ensure that if no union covers more than 50 per cent of the workers, collective bargaining rights are granted to the unions in the unit, at least on behalf of their own members.

The Committee hopes that the legislation will be brought into full conformity with the requirements of the Convention in the near future.