Interim Report - Report No 377, March 2016

1. 419. The Committee last examined this case at its October 2014 meeting where it presented an interim report to the Governing Body [see 373rd Report, approved by the Governing Body at its 322nd Session (October 2014), paras 427–470].
2. 420. The International Trade Union Confederation (ITUC) sent additional information in relation to the complaint in communications dated 13 March 2015 and 26 February 2016.
3. 421. The Government sent its observations in a communication dated 7 October 2015.
4. 422. Swaziland has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 423. In its previous examination of the case at its October 2014 meeting, the Committee made the following recommendations [see 373rd Report, para. 470]:
   • (a) The Committee expects the immediate adoption of amendments to the IRA by Parliament in a manner so as to ensure fully the freedom of association rights of the TUCOSWA and of all workers’ and employers’ federations that have historically represented their members’ interests in the country. The Committee urges the Government to take steps immediately to preserve the workers’ and employers’ federations and allow them to operate while awaiting the amendment of the IRA by the Parliament so as to ensure the continuity of these organizations. The Committee urges the Government to keep it informed of the progress made in this regard.
   • (b) In the meantime, the Committee once again strongly urges the Government to take all necessary measures to ensure that the TUCOSWA is able to fully exercise its trade union rights, including the right to engage in protest action and peaceful demonstrations in defence of its members’ occupational interests, and to prevent any interference or reprisal against its leaders, in accordance with the principles of freedom of association. The Committee expects that all workers’ and employers’ federations working within the country will be fully assured their freedom of association rights until such time as they may register under the amended law.
   • (c) The Committee requests the Government and the complainant to keep it informed of the decision of the High Court of Swaziland on the constitutional challenge to the Government’s refusal to register the federation.
   • (d) The Committee urges the Government to take steps immediately for the unconditional release of Mr Maseko and to provide compensation for the damages suffered.
   • (e) The Committee is deeply concerned by the complainant’s allegations that Justice Mumcy, who ordered the release of Mr Maseko, was also threatened with arrest. Observing that an independent judiciary is essential to ensuring the full respect for the fundamental freedom of association and collective bargaining rights, the Committee urges the Government to ensure full respect for this principle and to ensure that Justice Mumcy is not subjected to threats for discharging her duties in accordance with the mandate bestowed upon her.
   • (f) The Committee expresses its deep concern over the absence of significant progress in the present case more than two years after the registration of the TUCOSWA was nullified, despite clear recommendations from the Committee and the ILO technical assistance provided. The Committee strongly urges the Government to take all necessary steps as a matter of urgency to resolve the case and to keep it informed in this regard.
   • (g) The Committee draws the Governing Body’s special attention to the extreme seriousness and urgent nature of this case.

B. Additional information from the complainants

1. 424. In a communication dated 13 March 2015, the ITUC indicates that despite the amendment of the Industrial Relations Act (IRA), the Ministry of Labour and Social Security refuses to register the Trade Union Congress of Swaziland (TUCOSWA). A new application for registration was filed on 1 December 2014 under the amended IRA, and while the Federation of Swaziland Employers and Chamber of Commerce (FSE&CC) and the Federation of the Swazi Business Community (FSBC) received confirmation of receipt and were advised on necessary changes to their by-laws, the Ministry has completely ignored applications from the workers’ federation.
2. 425. The complainant recalls that on 8 October 2014, the Minister of Labour and Social Security announced a Cabinet resolution suspending federations, including TUCOSWA. The Minister justified this decision by arguing that the amendment of the IRA had been referred to Parliament under a certificate of urgency and would allow for the registration of federations when adopted. In November 2014, Parliament passed Act No. 11 of 2014 amending the IRA. However, according to the ITUC, several tripartite recommendations agreed upon in the Labour Advisory Body (LAB) were discarded in the amendment and constitute serious obstacles to the registration of TUCOSWA. Section 32bis (2) of the amended Act is particularly problematic as it establishes that the Commissioner of Labour may require, in addition to the formal requirements, “any other information” she/he deems relevant in order to decide on the registration of a federation. Moreover, section 32bis (3) of the Act provides that the Commissioner of Labour shall register a federation, when she/he is satisfied that the requirements for registration are met. The Commissioner of Labour is neither bound by time limits nor by clearly defined criteria when deciding on the registration of a federation. Thus, the legislation vests her/him with discretionary powers in deciding whether or not an organization meets all the conditions required for registration creating a situation which is similar to that in which previous authorization is required. In the view of the ITUC, these discretionary powers are clearly used to continue to deny the registration of TUCOSWA effectively denying Swazi workers the right to associate freely at federal level for almost three years.
3. 426. With respect of the wide discretion afforded to the Commissioner of Labour by the IRA, in its communication of 26 February 2016, the ITUC declares that this continues to constitute a hindrance for workers in practice as exemplified by the denial to register the Amalgamated Trade Unions of Swaziland (ATUSWA) for more than two years. According to the ITUC, in August 2013, ten trade unions representing manufacturing workers decided to merge in order to form the ATUSWA and approached the Commissioner to discuss the formalities needed for its registration. The constitution was reviewed together and the Commissioner pointed at certain areas that needed revision. ATUSWA implemented these recommendations and held its founding congress on 7 September 2013. The application for registration was then submitted on 23 September 2013 in accordance with the requirements set out by law. The Commissioner did not react to the application until 2 January 2014 when the union was requested to make further amendments to its constitution. The ITUC denounces the fact that, since then and during the last two years, the Commissioner of Labour has been putting numerous requirements before ATUSWA for its registration (deletion of the term “amalgamated” in the union’s name; need for the founding members of the union to provide a letter from their employer to prove their employment) which went well beyond the statutory requirements and what has been requested from other unions for their registration.
4. 427. The ITUC denounces the fact that the police continue to interfere in trade union meetings organized by TUCOSWA. A mass meeting organized by TUCOSWA was scheduled to take place on 26 February 2015 at the Bosco Skills Centre Hall in Manzini in order to address questions related to the registration of trade unions, the loss of trade benefits under the African Growth and Opportunity Act, the recognition of trade unions for collective bargaining purposes and other democratic rights. However, according to the ITUC, the police intimidated the landlord of the Bosco Skills Centre Hall on 24 February 2015 indicating that he could not rent out the hall to TUCOSWA without the permission of the police. The trade union meeting was postponed to 28 February 2015 and was to take place at the Swaziland National Teachers Association (SNAT) Centre in Manzini. However, on that day, the police mounted roadblocks around the country and placed uniformed and plain-clothed police in front of the SNAT Centre, where the meeting was supposed to be held. Despite the intimidating police presence and roadblocks, more than 100 workers made it to the Centre. But the police, led by the regional commissioner and the senior operations officer, insisted that the meeting could not take place.
5. 428. In its communication of February 2016, the ITUC denounces other instances of police interference in public protest actions as well as in internal trade union meetings, such as local shop steward meetings (most recently: 23 January 2016; 30 January 2016). Police have started to justify this interference with the Urban Act instead of the Public Order Act which has come under repeated criticism in the ILO. Accordingly, unions now have to request a non-objection certificate from police two weeks ahead of protest action that is planned in urban areas where most of the workplaces with union representation are located. Moreover, in February 2016, two trade unionists of the Swaziland National Association of Teachers (SNAT) were arrested and charged with obstruction for participating in a protest action called by public sector unions to demand the publication of a report on the public sector pay review.
6. 429. In conclusion, the ITUC expresses its serious concerns over the Government’s systematic failure to guarantee the right to freely establish trade union organizations both in law and in practice.

C. The Government’s reply

1. 430. In a communication dated 7 October 2015, the Government informs that the Parliament had adopted 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. As a consequence of this amendment, the TUCOSWA, as well as two employers’ federations – namely the Federation of Swaziland Employers and Chambers of Commerce (FSE&CC) and the FESBC, were registered in May 2015. The Government adds that another federation, the Federation of Swaziland Trade Unions (FESWATU), had been registered in June 2015.
2. 431. According to the Government, the registration of these federations has provided the foundation to establish tripartite structures and strengthen tripartite consultations and social dialogue. Key tripartite structures, including the LAB and the National Steering Committee on Social Dialogue have been gazetted and are now operational. A programme of meetings of the Social Dialogue Committee for the next six months has been agreed, and three meetings have already been held following the reconstitution of the Committee. Furthermore, the LAB had also met and transacted its business without any hindrance and agreed on a programme of meetings. The Government adds that work is ongoing to conclude the composition of other tripartite structures.
3. 432. With regard to the release of TUCOSWA’s lawyer, Mr Thulani Maseko, requested by the Committee, the Government indicates that Mr Maseko was released unconditionally on 30 June 2015 by a decision of the Supreme Court.
4. 433. With regard to the request from the ITUC to amend section 32 of the IRA to eliminate the discretion of the Commissioner of Labour to register Trade Unions, the Government indicates that this issue was only raised during the International Labour Conference in June 2015. Furthermore, the workers at the meeting of the National Steering Committee on Social Dialogue, on 24th August 2015, indicated that they will make a submission to the Government clarifying their concerns.

D. The Committee’s conclusions

1. 434. The Committee recalls that this case concerns serious allegations of the revocation of the registration of a workers’ federation by the Government and the systematic interference by security forces against its activities, notably on the argument that it is a deregistered organization enjoying therefore limited trade union rights. In its previous conclusions, the Committee had expressed its deep concern over the absence of significant progress in the present case for more than two years after the registration of the TUCOSWA was nullified, despite clear recommendations from the Committee and the ILO technical assistance provided.
2. 435. The Committee welcomes the adoption by the 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 consequently the registration of the TUCOSWA in May 2015. The Committee also notes with interest, from the Government’s report, that the two employers’ federations, namely the FSE&CC and the FESBC, were also registered. Finally, the Committee observes the Government’s statement that another workers’ federation, the FESWATU, had been registered in June 2015.
3. 436. The Committee also welcomes the indication that the TUCOSWA, and the other federations, are now represented in all tripartite structures that have been established, including most importantly the Labour advisory Board and the National Steering Committee on Social Dialogue for Swaziland, and that these bodies had already met and agreed without any hindrance on programmes of meetings for the coming months.
4. 437. The Committee recalls its previous conclusion whereby it strongly urged the Government to take measures to ensure that the TUCOSWA may fully exercise its trade union rights, without interference or reprisal. The Committee expresses its concern over the report by the ITUC of interference by security forces in a mass meeting organized on February 2015 by TUCOSWA in Manzini to address questions related to the registration of trade unions, the loss of trade benefits under the African Growth and Opportunity Act, the recognition of trade unions for collective bargaining purposes and other democratic rights, as well as in internal trade union meetings, such as local shop steward meetings organized in January 2016, whereby the police justified its interference under the Urban Act. The Committee further notes with concern the allegation that in February 2016, two trade unionists of the Swaziland National Association of Teachers (SNAT) were arrested and charged with obstruction for participating in a protest action called by public sector unions. The Committee trusts that, alongside the strengthening of tripartite consultations and social dialogue, the Government will endeavour to ensure that all the workers’ and employers’ federations, either seeking for registration or duly registered under the amended law, may fully exercise their trade union rights, including the right to engage in protest action and peaceful demonstrations in defence of their members’ occupational interests without any interference or reprisal against their leaders, in accordance with the principles of freedom of association. Consequently, the Committee urges the Government to provide its observations on the allegations of arrest and conviction of two trade unionists of the SNAT in February 2016 for participating in a protest action called by public sector unions.
5. 438. Furthermore, the Committee recalls its previous conclusion whereby it had noted the arrest and imprisonment of TUCOSWA’s lawyer, Mr Thulani Maseko, who was then sentenced to two years in prison by the High Court of Swaziland in relation to articles in the press whereby he questioned the impartiality and independence of the judiciary. The Committee had expressed its deep concern over the conviction of Mr Maseko and had urged the Government to take steps immediately for his unconditional release. The Committee notes with satisfaction that Mr Maseko was released unconditionally on 30 June 2015 by a decision of the Supreme Court. The Committee notes in particular that the Supreme Court observed that “what happened in this case was a travesty of justice. Whatever issues that arose with regard to the need to balance freedom of expression or of the press with the protection of fair hearing and authority of the courts; those issues were not properly handled. … It was for these reasons why (the Court) allowed the appeal and set aside the convictions and sentences against the appellant and ordered the immediate release of the appellants in prison” (Thulani Maseko and others v Rex, Supreme Court of Swaziland, 30 June 2015).
6. 439. The Committee notes that the ITUC specifically addresses section 32 of the amended Act which provides that a federation seeking registration must complete a prescribed form and submit a copy of its constitution to the Commissioner of Labour who can also require the submission of any other information. According to the complainant the legislation vests the Commissioner of Labour with discretionary powers in deciding whether or not an organization meets all the conditions required for registration creating a situation which is similar to that in which previous authorization is required. The Committee also notes the observations from the Government that this issue was never brought to tripartite discussion before June 2015 and that the workers at the meeting of the National Steering Committee on Social Dialogue on 24 August 2015 indicated that they will make a submission clarifying their concerns. The Committee trusts that this issue will be brought to the relevant national tripartite structure for discussion. Noting that the Committee of Experts on the Application of Conventions and Recommendations is following this legislative matter in its latest comments, the Committee will not pursue its examination of this aspect of the case.
7. 440. However, the Committee observes that, according to the ITUC in a recent communication of February 2016, the wide discretion afforded to the Commissioner of Labour continues to constitute a hindrance for workers in practice as exemplified by the denial to register the Amalgamated Trade Unions of Swaziland (ATUSWA) for more than two years. According to the ITUC, in August 2013, ten trade unions representing manufacturing workers decided to merge in order to form the ATUSWA and approached the Commissioner to discuss the formalities needed for its registration. The Committee notes the ITUC allegations that since the ATUSWA applied for its registration in September 2013, the Commissioner of Labour has been putting numerous requirements before the union (deletion of the term “amalgamated” in the union’s name; need for the founding members of the union to provide a letter from their employer to prove their employment) which went well beyond the statutory requirements and what has been requested from other unions for their registration. In this regard, the Committee wishes to recall that a long registration procedure constitutes a serious obstacle to the establishment of organizations and amounts to a denial of the right of workers to establish organizations without previous authorization. Moreover, the Committee underlines that the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, para. 307 and 333]. The Committee, while requesting the Government to send its observation in reply to the ITUC, trusts that the Commissioner of Labour will endeavour to finalize the registration of the ATUSWA without delay as part of the drive for the strengthening of the national social dialogue since the amendment of the IRA in May 2015, and requests the Government to keep it informed of the steps taken in this respect.

The Committee’s recommendation

1. 441. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee trusts that, alongside the strengthening of tripartite consultations and social dialogue, the Government will endeavour to ensure that all the workers’ and employers’ federations, either seeking for registration or duly registered under the amended law, may fully exercise their trade union rights, including the right to engage in protest action and peaceful demonstrations in defence of their members’ occupational interests without any interference or reprisal against their leaders, in accordance with the principles of freedom of association.
   • (b) The Committee urges the Government to provide its observations on the allegations of arrest and conviction of two trade unionists of the Swaziland National Association of Teachers (SNAT) in February 2016 for participating in a protest action called by public sector unions.
   • (c) The Committee trusts that the Commissioner of Labour will endeavour to finalize the registration of the ATUSWA without delay as part of the drive for the strengthening of the national social dialogue since the amendment of the IRA in May 2015 and requests the Government to keep it informed of the steps taken in this respect.