Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations received on 1 September 2015 from the International Trade Union Confederation (ITUC) concerning the issues being examined by the Committee. The Committee also notes the joint communication received on 1 September 2015 from the International Organisation of Employers (IOE) and the Federation of Swaziland Employers and Chamber of Commerce (FSE&CC) on recent developments in the country concerning issues discussed by the Committee on the Application of Standards of the International Labour Conference (hereafter the Conference Committee) in June 2015.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 104th Session, June 2015)

The Committee notes the discussion which took place at the Conference Committee in June 2015. The Committee observes that the Conference Committee took note of the information provided by the Government relating to the amendment made to the Industrial Relations Act (IRA) by virtue of which the Trade Union Congress of Swaziland (TUCOSWA), the FSE&CC, and the Federation of Swaziland Business Community (FSBC) are now registered. The Conference Committee also referred to the commitment by the Government to fully ensure the full operationalization of all the tripartite structures in the country by inviting the federations to nominate their members on the various statutory bodies in order to assist in maintaining a healthy social dialogue in the country. Concerning developments in relation to pending issues, the Conference Committee, in its conclusions, urged the Government, among other things: (i) to release unconditionally Mr Thulani Maseko, TUCOSWA’s lawyer, who was serving a jail term; (ii) to ensure that all workers’ and employers’ organizations are fully assured of their freedom of association rights in relation to the registration issue, in particular to register the Amalgamated Trade Union of Swaziland (ATUSWA) without delay; (iii) to amend section 32 of the IRA to eliminate the discretion of the Commissioner of Labour to register trade unions; (iv) to amend the 1963 Public Order Act following the work of an ILO consultant as well as the Suppression of Terrorism Act, in consultation with the social partners, to bring them into compliance with the Convention; (v) to adopt the Code of Good Practice for protest and industrial action; and (vi) to address issues in relation to the Public Services Bill and the Correctional Services Bill in consultation with the social partners.

The Committee notes that in October 2015 the Government provided updated information in relation to the issues under consideration by the Conference Committee in June 2015.

Articles 2, 3 and 5 of the Convention. Registration of workers’ and employers’ federations. In its previous comments, the Committee had noted the adoption by Parliament of the Industrial Relations (Amendment) Act, 2014 (Act No. 11 of 2014 published in the Government Gazette of 13 November 2014), introducing provisions concerning the registration of employers’ and workers’ federations, and had urged the Government to register and recognize the legal personality of TUCOSWA, the FSE&CC and the FSBC. The Committee notes with satisfaction that TUCOSWA, the FSE&CC and the FSBC were registered in May 2015, and the indication from the Government that they are now represented in all tripartite structures that have been established, including the Labour Advisory Board, the National Steering Committee on Social Dialogue for Swaziland, the Swaziland National Provident Fund Board, the Training and Localization Committee and Wages Councils. The Committee further notes from the Government that another federation, the Federation of Swaziland Trade Unions (FESWATU), had been registered in June 2015. The Committee urges the Government to indicate the steps taken to register ATUSWA as requested by the Conference Committee.

Furthermore, the Committee notes with satisfaction that TUCOSWA’s lawyer, Mr Thulani Maseko, was released unconditionally on 30 June 2015 by a decision of the Supreme Court.

Legislative issues. The Committee takes due note of the information provided by the Government on the status of its long-standing requests concerning amendments and modifications to the following legal texts:

• -The Public Service Bill: The Committee notes that the Bill was approved by Cabinet and has been published in the Gazette as Legal Notice No. 16 of 2015 and is lying open for public comments before being tabled in Parliament for debate and promulgation. The Government adds that dialogue on the Bill is still ongoing on some issues.
• -The 1963 Public Order Act: The Committee recalls that it has been requesting the Government for many years to take the necessary measures to amend the Public Order Act so as to ensure that the Act could not be used to repress lawful and peaceful strike action. The Committee notes that in the framework of the Office’s technical assistance, a review of the Public Order Act commenced in September 2015 and that a draft bill will be presented shortly to the Government and the social partners.
• -The Correctional Services (Prison) Bill: In relation to the recognition of the right to organize for prison staff, the Committee notes that the Bill has been reviewed by the Ministry of Justice and Constitutional Affairs and submitted to Cabinet for approval, after which it will be published in the Gazette and shall be subject to public comments for 30 days before being tabled to Parliament for debate and promulgation.
• -The Code of Good Practice for protest and industrial action: The Committee notes that the Code has been approved by Cabinet and has been tabled before Parliament for 14 days in each chamber. If it is not called for debate, it shall be deemed to have been approved and shall therefore come into force.

While welcoming the concrete steps taken by the Government throughout the year on these legislative and administrative matters, the Committee trusts that the Government will endeavour to promptly complete these reform processes to ensure full compliance with the provisions of the Convention, and will provide information on all progress made in this regard.

With regard to the amendment of section 32 of the IRA requested by the Conference Committee, the Committee takes note of the observations from the ITUC according to which the IRA, as amended in November 2014 by Parliament, did not reflect the tripartite consensus reached in the Labour Advisory Board with respect to section 32bis which vests the Commissioner of Labour with unrestricted discretion in deciding over the registration of a trade union. The Committee also notes the observations from the IOE and the FSE&CC indicating that this issue was never brought to tripartite discussion and requesting TUCOSWA to provide information on how the discretion of the Commissioner of Labour is contrary to good practice. The Committee trusts that this issue will be brought to the relevant national tripartite structure for discussion and requests the Government to indicate any developments in this regard.

Lastly, with regard to the conclusions of the Conference Committee in relation to the amendment to the Suppression of Terrorism Act, the Committee requests the Government to indicate any consultation with the social partners in this regard and its outcome.