Comments adopted by the CEACR: Eswatini

Adopted by the CEACR in 2022

C094 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 2 of the Convention. Inclusion of labour clauses in public contracts. The Committee notes the information provided by the Government in response to its previous comments. In particular, it notes that tripartite consultations between the Government and social partners concerning the draft Employment Bill, 2017, which took place within the Labour Advisory Board (LAB), were completed in July 2019. The draft Bill was subsequently reviewed by the ILO, whose comments were taken into consideration in the final draft of the Bill. The Government adds that the final draft Bill will be forwarded to the Cabinet for approval and to the Parliament for adoption. With regard to the implementation of the Convention, the Government reports that the Convention is effectively implemented in all public procurement processes and that the Eswatini Public Procurement Regulatory Authority (ESPPRA) has developed a Standard Tendering Document for Procurement of Goods in respect of all national and international open tendering. It further indicates that public contracts in the country contain clauses requiring the tenderer to comply with basic labour law. The Committee notes that Part XIII of the draft Employment Bill, 2017 contains substantive provisions regarding the obligation established under Article 2(1) of the Convention concerning the insertion of labour clauses in public procurement contracts. The Committee notes that section 126 of the draft Employment Bill stipulates that “Every public contract is deemed to include and to incorporate the provisions contained in this Part as if they were expressly set out as conditions to be observed and performed on the part of either or both of the parties to the contract”, whereas section 127 requires that contractors “pay rates of wages and observe hours and conditions of employment (referred to as established rates and conditions) that are not less favourable than those established by any collective agreement covering a substantial proportion of employees and employers in the trade or industry concerned in the contract”. On the other hand, the Committee notes that the examples of public contracts provided by the Government in its report do not contain labour clauses of the type required by Article 2. The Committee considers that the provisions of Part XIII of the draft Employment Bill, 2017 are aligned with the core requirements of Article 2 of the Convention. The Committee requests the Government to notify the Office once the draft Bill is adopted and to provide a copy. In addition, the Committee requests the Government, once the draft Bill is adopted, to provide detailed updated information on the manner in which its provisions are applied in practice to ensure the effective implementation of Article 2 of the Convention, in all public contracts to which the Convention is applicable.

Article 4(a)(iii). Posting of notices. The Committee notes the information provided by the Government in reply to its previous request.

Adopted by the CEACR in 2020

C087 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 2 of the Convention. Right of workers and employers to establish organizations without previous authorization. In its previous comments, the Committee had requested the Government to bring the issue of the amendment of section 32 of the Industrial Relations Act (IRA) to the relevant national tripartite structure for discussion. The Government reported that the Labour Advisory Board (LAB) had examined the issue and concluded that section 32 ought to be amended simultaneously with sections 27 and 28 of the law. However, the LAB decided to stay the amendment of section 32 in view of the fact that other provisions in the law were outdated and that it was advisable to conduct a comprehensive and holistic review of the whole legislation. In its latest communication dated 30 November 2020, the Government informs that the LAB has approved the appointment of the Conciliation, mediation and Arbitration Commission (CMAC) to lead the holistical review of the IRA for a period of three months and to submit a draft new legislation. The Committee requests the Government to inform on any developments in this regard.

Article 3. Right to strike in practice. The Committee previously noted the Government’s indication that the Industrial Court of Appeal upheld in a decision the principle that an employer is allowed to use replacement labour during the course of a lawful strike action (Case No. 12 of 2017). The Government specified that it held a different view and had issued a public statement, before the Court decision, to the effect that employers are not allowed to resort to replacement labour during the course of a lawful strike action, as such practice could negate the very purpose of a strike action as a collective bargaining tool available to workers. The Government indicated its intention to include this subject matter in the planned holistic review of the Industrial Relations Act. The Committee notes the observations from the TUCOSWA that since its request of 2018, the Government has made no efforts to commence the legislative change necessary to curb the consequences of the judgment of the Industrial Court of Appeal. The TUCOSWA concludes that there is no political will to embark on the holistic review of the Industrial Relations Act so as to explicitly provide for the protection of the right to strike. The TUCOSWA submits that since the pronouncement of the judgment, strike action has been significantly reduced if not eliminated, as each time there is a threat of a strike, the employers simply brandish the judgment and make workers aware that if they proceed with the strike they can be replaced during the industrial action. The Committee recalls its view that provisions allowing employers to dismiss strikers or replace them temporarily or for an indeterminate period are a serious impediment to the exercise of the right to strike, particularly where striking workers are not able in law to return to their employment at the end of the dispute (see the 2012 General Survey on the fundamental Conventions, paragraph 152). The legislation should provide for genuine protection in this respect. The Committee once again requests the Government to provide information on any measures taken or envisaged in this regard, including to address the concerns raised by the TUCOSWA, trusting that the matter will be included in the holistic review of the Industrial Relations Act by the CMAC or as a separate legislative measure.

C087 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the observations received on 1 September 2019 from the International Trade Union Confederation (ITUC) alleging violence by the security forces against peaceful protest actions between August and October 2018 and in September and October 2019, as well as the Government’s reply thereon, both of which are addressed in this comment.

The Committee notes the observations of the Trade Union Congress of Swaziland (TUCOSWA) denouncing similar acts of police violence and disruption against peaceful demonstrations. TUCOSWA further alleges other violations of the Convention, including: (i) the refusal of a number of companies to recognise the Amalgamated Trade Union of Swaziland (ATUSWA) despite various Arbitration Awards in its favour, thus impairing its ability to develop programmes and activities; (ii) the unilateral declaration by the Police Commissioner of an industrial action as unlawful in September 2018; (iii) the refusal to allow a member of the Swaziland Nurses Association to represent the union during negotiations with the Government on the basis that he is no longer employed, thus violating the right of workers to elect their representatives in full freedom; and (iv) the intimidation and victimization of leaders of the Swaziland National Association of teachers (SNAT) and the Swaziland Electricity Supply Maintenance and Allied Workers Union (SESMAWU). The Committee requests the Government to provide its comments thereon.

Civil liberties and trade union rights. Police violence against peaceful demonstrations. The Committee notes that the ITUC alleges the following incidents during protest actions: (i) in September 2018, members of the ATUSWA were arrested and beaten up by the police during protests in five garment and textile factories involving more than 10,000 workers. According to the ITUC, the police resorted, without provocation, to disperse the workers using tear gas and beating them up; (ii) in October 2018, armed police invaded the Hlatikhulu Government Hospital during a lawful and peaceful protest by nurses. The strike came after a series of protests and rallies violently disrupted by the police; (iii) in September 2019, during a peaceful demonstration of civil servants organized by the SNAT, the National Association of Public Service and Allied Workers Union (NAPSAW) and the Swaziland National Government Accounting Personnel (SNAGAP), members of the police fired teargas, rubber bullets and water cannons at protesters during a march to deliver petitions to the Eswatini Royal Police Services Headquarters, the Ministry of Public Service and the Ministry of Education and Training. According to the ITUC, police intervened and began assaulting the protestors when the crowd diverged from their authorized protest route; and (iv) in October 2019, during a protest march of 8,000 workers in Manzini, the police fired live ammunition into groups of protesters injuring ten workers, including the Secretary General for NAPSAWU’s Manzini Branch (Dumisani Nkuna). According to the ITUC, further violence erupted as the protestors reached the Manzini Regional Education Office and at least 30 workers were injured. The Government resorted to the National Industrial Relations Court to have the strike declared illegal under reasons of posing “threats to national interest.” The Court handed down an interim order halting the strike action.

The Committee notes that, in reply to the observations of the ITUC, the Government informs of the setting up, in September 2019, of an Investigation Committee composed of four members, led by a senior judicial officer. The Investigation Committee was appointed to give effect to the recommendation of the Committee on Freedom of Association to initiate an independent investigation to determine the justification of the action of the police denounced by the ITUC (see 388th Report, March 2019, Case No. 2949). Otherwise, the Government recalls that the statutory Labour Advisory Board (LAB), being a tripartite advisory structure established in terms of Part III of the Industrial Relations Act, had initiated its own investigations with regard to the industrial action matters of September 2018 denounced by the ITUC. The LAB held meetings in November and December 2018 to listen to submissions from affected stakeholders including TUCOSWA, ATUSWA and SNAT, affected employers and the Police, in an effort to obtain and examine the detailed facts surrounding the conduct of these industrial actions in terms of compliance with the established legislative procedures. While the LAB was scheduled to issue findings in early 2019, this was overtaken by the decision of the Government to appoint the Independent Investigation Committee. Legal Notice No.183 of 2019 (Government Gazette of 12th September 2019) listed the functions of the Independent Investigation Committee which include: (i) determining compliance of all the industrial actions mentioned by the ITUC and TUCOSWA in their letter of complaint of September 2018, as well as the extent and justification for the involvement of the security forces in the industrial actions; (ii) investigating the alleged conduct by the police invading Hlathikhulu Government Hospital; (iii) interviewing witnesses, conducting site inspections and examining any documentary, electronic and other forms of evidence to prove or dispel elements of violence or intimidation incidental to the industrial actions mentioned by the ITUC in its letters of September 2018 and September 2019; and (iv) making findings on the conduct of the industrial actions and make recommendations on any gaps regarding the law which impact on the regulation and conduct of industrial action. On 28 September 2019, the Independent Investigation Committee extended invitation to all interested persons and stakeholders to indicate their interest to make submission. The Government states that the swift establishment of the Investigation Committee demonstrates its engagement to promote the application of the Convention.

The Government further denies the ITUC allegation that police brutality against striking workers is still prevalent and underlines that the industrial actions which took place within the period August to October 2018 are not a reflection of the general behaviour of the police against industrial actions in the country – if it is assumed that these industrial actions were characterised by police brutality. The Government indicates that during 2018 over ten other industrial actions organized by various trade unions all over the country weren’t disrupted by acts of violence or brutality from the police.

The Committee must express its concern over the serious allegations of recurrent violent attacks and disruption by security forces against peaceful trade union gatherings, including alleged violent attacks occurring after the establishment of the new Investigating Committee by the Government to improve the handling of trade union gatherings in public places. In this respect, the Committee recalls that the exercise of trade union rights is incompatible with violence or threats of any kind. It is therefore important that all allegations of violence against workers who are organizing or otherwise defending workers’ interests be thoroughly investigated with a view to establishing the facts, determining violations and responsibilities, punishing the perpetrators and preventing the recurrence of such acts. The Committee welcomes the decision of the Government to set up the Independent Investigation Committee and to extend its mandate to cover the industrial actions referred to by the ITUC in its communications of September 2019, and the police firing of live ammunition into groups of protesters in October 2019, along with those listed in the ITUC communication of September 2018. The Committee notes that the Investigation Committee was given an extended period until March 2021 to submit a report with findings and the Government’s intention to transmit the outcome of the investigations. The Committee requests the Government to provide information with regard to the outcome of the Independent Investigation Committee, as well as any measures taken by the Government as a follow-up. With reference to its previous comments, the Committee also requests the Government to provide the results of legal and mediation proceedings in cases where the unions had subsequently resorted to the Conciliation Mediation and Arbitration Commission (CMAC) and the Industrial Court.

The Government informs of the adoption of the Police Service Act (No. 22 of 2018), noting that it contains enhanced provisions in line with the promotion of the exercise of the right to freedom of association and includes provisions so that the abuse of power by members of the police may lead to disciplinary action (Section 49(1)(I)). The Government stresses the relevance of having included such provisions in the law regulating the discipline of police officers, so as to ensure the highest exercise of restraint by police officers in their line of duty for the maintenance of public safety and public order during industrial and protest actions.

Furthermore, the Government reports on the technical assistance of the Office in 2019 for the dissemination programme of the Code of Good Practice for Industrial and Protest Actions (Legal Notice No. 202 of 2015), the Code of Good Practice on Gatherings (Legal Notice No. 201 of 2017) and the Public Order Act of 2017, as a capacity-building strategy of the various stakeholders on how industrial and protest actions can be well managed in the country, in order to minimise unwarranted confrontations between protestors and members of the law enforcement agencies and Municipal Councils. Special sessions are planned for members of Parliament, Cabinet Ministers and executive leaders of trade unions. The Committee reiterates its hope that this dynamic will contribute to a conducive climate free from violence, pressure and threats of any kind on the occasion of peaceful demonstrations by workers. Noting the Government’s intention to report on the impact of the dissemination programme of the Codes of good practices, the Committee requests the Government to continue to provide information on measures taken to ensure that trade union rights to engage in protest and industrial action in defence of occupational interests are indeed protected, both in law and practice, including information on violations identified and penalties imposed pursuant to section 49(1) of the Police Service Act, No.22 of 2018.

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

C098 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the observations of the Trade Union Congress of Swaziland (TUCOSWA) received on 30 August 2020, concerning: (i) allegations of restrictions to the right to collective bargaining in public enterprises, both in law – section 10(1) of the Public Enterprise (control and monitoring) Act – and practice; and (ii) the refusal of a pulp and paper company to pay termination benefits to workers dismissed, despite a collective agreement. Recalling that employees of public enterprises should be able to negotiate collectively their wage conditions, the Committee requests the Government to send its comments with respect to the TUCOSWA’s observations.

The Committee further notes the observations of Education International received on 20 September 2019 on discriminatory measures affecting the President of the Swaziland National Association of Teachers (SNAT), and the reply of the Government thereto. In this respect, the Committee also refers to its comments under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.87), whereby it requests the Government to reply to allegations from TUCOSWA on anti-union measures against union leaders, including of the SNAT.

Article 4. Promotion of collective bargaining mechanisms. In its previous comments, the Committee requested the Government to continue to provide information on steps taken to promote collective bargaining in all sectors, including measures taken to implement section 42 of the Industrial Relations Act (IRA) on the recognition as collective employee representatives, as well as information on the number of collective agreements signed and the number of workers covered. The Committee notes the indication that most employers grant recognition agreements to registered workers’ organisations without need to resort the matter to arbitration under the provisions of section 42 of the IRA. This is evidenced by the low number of case load at the Conciliation, Mediation and Arbitration Commission (CMAC) wherein recognition disputes ought to be reported (41 applications or disputes for recognition filed between 2017 and 2019). Furthermore, the Committee notes that while it provides statistics on the number of collective agreements registered by the Industrial Court from 2017 to 2019 (22 in 2017, 26 in 2018 and 16 up to 31 August 2019), the Government informs of the low compliance with the provisions of section 55(2) of the IRA whereby signed collective agreements shall be submitted to the Industrial Court for registration with a copy to the Commissioner of Labour. The Government considers that this failure to comply results in a number of collective agreements not known to the office of the Commissioner of labour, and indicates its intention to sensitize the social partners about the importance of complying with the requirements under section 55(2) of the IRA through regular communications at the national radio. The Committee invites the Government to inform about any fluctuation in the number of registered collective agreements as a result of the sensitization campaign. It also invites the Government to provide information on any other measures taken to promote collective bargaining and to continue providing information on the number of collective agreements signed, the sectors and the number of workers covered.