Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Labour Inspection Convention, 1947 (No. 81) - Eswatini (Ratification: 1981)

The Committee takes note of the Government’s report received on 3 September 2009.

Article 3(2) of the Convention. Functions of labour inspectors. The Committee recalls that for a number of years it has observed that in settling disputes, labour inspectors risk assuming a burden that is detrimental to the performance of their primary duties set out in Article 3(1) of the Convention, i.e., securing the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work, such as provisions relating to hours, wages, safety, hygiene and welfare, the employment of children and young persons, and other connected matters.

In its previous comments, the Committee had welcomed the amendments introduced in 2005 to the Industrial Relations Act (No. 1 of 2000) and in particular, the fact that sections 76, 77 and 78, as amended, provided that labour disputes would henceforth be referred directly to the Conciliation, Mediation and Arbitration Commission and not to the Commissioner of Labour or any person authorized to act on his or her behalf. The Committee had also noted however, that pursuant to section 82 of the Industrial Relations Act as amended, the Commissioner of Labour or any person authorized to act on his or her behalf, maintained the power to “intervene” in labour disputes, before being reported to the Commission, if he or she had reason to believe that they could have serious consequences for the employers, the workers or the economy if not resolved promptly.

The Committee notes the supplementary information provided by the Government in this regard in its latest report. It notes in particular the text of the Guidelines for intervention by the Commissioner of Labour (gazetted in Vol. XL111 of 1 September 2005). The Guidelines form an integral part of section 82 of the Industrial Relations Act (section 1.2 of the Guidelines) and lay down general principles to guide the Commissioner of Labour in “preventing or limiting” disputes and assisting employers, employees and their organizations in understanding “how the Commissioner will perform the dispute functions” in terms of section 82 of the Industrial Relations Act. The Committee observes that the Guidelines, which have the force of law, appear to lump together the functions of prevention (which form an integral part of labour inspection functions), with the functions of conciliation and resolution of disputes; in several sections of the Guidelines, the Commissioner of Labour does not appear to be limited to merely exercising prevention functions but is also empowered to a large extent to carry out conciliation.

In particular, according to sections 2.3.5 and 2.4 of the Guidelines, the Commissioner is empowered to, and indeed “should”, intervene in disputes irrespective of whether the parties to the dispute wish the Commissioner to do so, under a wide range of circumstances, including if “it is within the public interest generally” for the Commissioner to do so, before a dispute is reported to the Conciliation, Mediation and Arbitration Commission. A dispute is defined in very general terms as a dispute which “exists or may arise” between employees and their employers; trade unions and employers; trade unions themselves; or employer organizations themselves (section 2.2 of the Guidelines). Depending on the nature of the dispute, the Commissioner may intervene either “personally […] to resolve or prevent the dispute through conciliation” or by appointing a person of his/her choice, to conduct fact-finding and make recommendations for the prevention or resolution of the dispute. In particular, the Commissioner may appoint a “conciliator” in consultation with the Commission; a “commissioner” in consultation with the parties; or a judge after consultation with the President of the Industrial Court (section 2.5 of the Guidelines). More importantly, if a party reports a dispute to the Conciliation, Mediation and Arbitration Commission under section 76 of the Industrial Relations Act after the Commissioner of Labour has intervened but before that intervention has been completed, the Commission may, after consultation with the Commissioner of Labour, direct the Commissioner or persons appointed by the Commissioner “to conciliate the dispute” as if they were commissioners appointed by the Conciliation, Mediation and Arbitration Commission under section 80(1) of the Industrial Relations Act (section 4.1 of the Guidelines). Furthermore, if a party reports the dispute to the Conciliation, Mediation and Arbitration Commission after the Commissioner of Labour has completed an intervention in accordance with section 82 of the Industrial Relations Act, the Commission may deem the dispute to have been “conciliated” and issue the required certificate stating whether or not the dispute has been resolved (section 4.2 of the Guidelines). Section 5.1 of the Guidelines provides that an appropriate budget needs to be allocated to ensure that the Commissioner of Labour’s office is able to fulfil its obligations as set out in the Guidelines.

The Committee observes that under the Guidelines, the labour inspector (Commissioner of Labour) or a person of his/her choice, may be entrusted with both the prevention and the conciliation of disputes on his/her own initiative. Thus, the powers which had been lifted from the Commissioner of Labour under sections 76, 77 and 78 of the Industrial Relations Act as amended in 2005, appear to be reinvested in the Commissioner of Labour through the provisions of sections 2, 4 and 5 of the Guidelines, thereby preventing the legislative amendments of 2005 from producing any effect. The Committee also observes that this situation takes place within a certain context which was discussed at the Conference Committee on the Application of Standards in relation to the application of Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) in 2009, and that it emerges from the Government’s report under that Convention that, further amendments to the Industrial Relations Act are currently under way.

The Committee recalls that according to Article 3(2) of this Convention, any further duties which may be entrusted to labour inspectors should not be such as to interfere with the effective discharge of their primary duties or prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. In this respect, the Committee also emphasizes that, Paragraph 8 of the Labour Inspection Recommendation, 1947 (No. 81), provides that the functions of labour inspectors should not include that of acting as conciliator or arbitrator in proceedings concerning labour disputes.

The Committee requests the Government to indicate in its next report the measures taken or considered for the amendment or abrogation of the provisions of section 82 of the Industrial Relations Act, and sections 1, 2, 4, and 5 of the Guidelines for intervention by the Commissioner of Labour, so that the Commissioner of Labour may be exempted from carrying out functions of conciliation and resolution of industrial disputes, which are likely to interfere with the effective discharge of the primary duties of labour inspectors, or prejudice the authority and impartiality which are necessary to inspectors in their relations with employers and workers.

The Committee also requests the Government to provide information on the part of the activities of the Commissioner of Labour, which concern the enforcement of the legal provisions relating to conditions of work, the protection of workers compared to the part of activities which concern conciliation and the settlement of disputes.

Articles 20 and 21. Annual labour inspection report. In its previous comments, the Committee had welcomed the detailed information provided in the 2005 annual report of the Department of Labour. The Committee notes however, that no subsequent annual reports have been received. It recalls that according to Article 20(3) of the Convention, the obligation to communicate the annual labour inspection reports within a reasonable period after their publication, is an ongoing one. The Committee would therefore be grateful if the Government would ensure that the annual report of the Department of Labour was communicated on a regular basis and that they continued to contain the information listed in Article 21 of the Convention.

The Committee is raising other points in a request addressed directly to the Government.