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

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

The Committee takes note of the Government’s report prepared in response to its previous direct request and in that regard wishes to make the following comments.

Article 2 of the Convention. 1. The Committee notes the Government’s comment that it is not aware of any disadvantage to domestic workers by their exclusion from the definition of "undertaking" in section 2(k)(bb) of the Industrial Relations Act and requests the Government to keep it informed in future reports of any developments in this regard and in relation to any exemptions from the operation of the Act made by the Minister pursuant to section 5.

2. The Committee notes that while the Government’s report stated that it had attached a copy of the Media Council Bill, it regrets that such a copy was not in fact received and once again requests the Government to send a copy of this Bill. In respect of its request for a copy of the Civil Servants Bill, as discussed in Case No. 2019 before the Committee on Freedom of Association, the Committee notes that the Government has explained that there is no such Bill, and requests the Government to keep it informed of any other Bill, or indeed Act, that in the future should affect the rights of civil servants.

Article 3 of the Convention. 1. The Committee notes the Government’s information that the purpose of section 29(1)(i), which places statutory restrictions on the nomination of candidates and eligibility for union office, is to protect the interests of the organizations and their members. The Committee recalls that workers’ and employers’ organizations should have the right to draw up their rules and elect their representatives in full freedom and that the legislative restrictions, such as payment of dues, concern matters relevant to the internal affairs of unions. The Committee therefore once again requests the Government to take the necessary steps to amend section 29(1)(i) so that such matters are left to the rules of the organization concerned, and to keep it informed of any developments in this regard.

2. In its previous request, the Committee had suggested that any supervision over a strike ballot by the Conciliation, Mediation and Arbitration Commission ("CMAC") should only be at the request of workers or their organizations, and had requested the Government to provide further information concerning the practical application of section 86(4), which requires an employer to provide a list to the CMAC of relevant employees prior to a strike ballot at an enterprise. The Committee notes in this regard the Government’s comment that it requires time to consider this observation as its time is devoted to looking into other demanding legislation. The Committee recalls that the Convention guarantees workers’ organizations the right to organize their activities and formulate their programmes without interference from public authorities. For that reason, the Committee once again requests the Government to provide details concerning the practical application of section 86(4) and to take the necessary measures to ensure that the CMAC does not supervise strike ballots, unless requested to do so by the workers or their organizations in accordance with the organization’s own rules.

3. The Committee recalls that it had expressed several concerns in relation to legislative sanctions against workers who took strike action. In relation to section 97(1), which provides that criminal proceedings may be brought where there is reasonable cause to believe that an offence under the Act has been committed by a corporate body, the Committee had requested clarification of the effect of section 97(1) and a copy of the relevant penal provisions that may apply. The Committee also drew the Government’s attention to the need for adequate protection to ensure that section 87, which allows an employer to dismiss an employee during a strike for reasons based on operational requirements, is not used to undermine legitimate strike action; and noted that section 88, under which workers could be summarily dismissed for strike action not in conformity with the Act, would in many cases be disproportionate to the seriousness of the violation. In this regard, the Committee notes the Government’s information that section 97(1) has never been applied and that section 88(6) is intended to act as a deterrent for those employees who may flout the procedural requirements preceding a strike action. The Committee notes, however, that the Government has not replied to its concerns in relation to section 87, nor has it provided a copy of the relevant penal provisions that may apply pursuant to section 97(1). The Committee recalls that sanctions for strike action should only be possible where the prohibitions in question are in conformity with the principles of freedom of association (see General Survey on freedom of association and collective bargaining, 1994, paragraph 177) and once again requests the Government to provide it with a copy of the legislative provisions that would apply to any case that was brought under section 97(1), to provide details of the practical effect of section 97(1), and strongly urges the Government to consider ensuring that sanctions applicable to workers conducting strike action under section 88 are proportionate to the seriousness of the violation and that the operation of section 87 does not undermine strike action. The Committee requests to be kept informed in these respects.

4. In its previous comments, the Committee had suggested that, as sanitary services are not essential services in the strict sense of the term, the Government consider establishing a minimum service in the sanitary services, with workers’ organizations and employers participating in its definition. The Committee notes the Government’s reply that it considers it to be a health risk to remove sanitary services from essential services. In this regard, the Committee repeats its earlier statement that including sanitary services as essential services, and so depriving such workers of their right to strike, is contrary to the Convention but, as sanitary services may become essential due to the extent and duration of a strike action, such services may be considered as a public utility and so it would be compatible with the Convention for a minimum service to be negotiated in this regard. The Committee requests the Government to consider the establishment of such a service in relation to the right to strike of workers in the sanitary services, and to keep it informed in this regard.

5. The Committee notes the Government’s information that the scope of the Industrial Relations Act does not address sympathy strikes in view of the country’s weak economy, which cannot afford such strikes. The Committee recalls that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is itself lawful (see General Survey, op. cit., paragraph 168), and requests the Government to consider amending its legislation accordingly and to keep it informed in this regard.