Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments of 26 August 2009 by the International Trade Union Confederation (ITUC) concerning issues under examination, as well as to serious acts of brutality from the security forces against peaceful demonstrations and threats of dismissal against trade unionists who took strike action in the textile sector, to the repeated arrests of union leaders, particularly of the Secretary General of the Swaziland Federation of Trade Unions (SFTU), and to the refusal from the public authorities to recognize trade unions. The Committee notes the reply of the Government dated 30 October 2009 contesting in particular the allegations made by the ITUC on arrests of union leaders for participating in protest actions. In reply to the alleged detention of the Secretary-General of the SFTU, the Government indicates that he was not arrested but questioned by the police and his fundamental constitutional rights were not violated. While noting the contradictory nature of the statements from the ITUC and the Government, the Committee wishes to recall, along with the Conference Committee on the Application of Standards, the importance it attaches to the full respect of basic civil liberties such as freedom of expression, of assembly and of the press, and to emphasize once again that freedom of assembly constitutes a fundamental aspect of trade union rights and that the authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, provided that the exercise of these rights does not cause a serious and imminent threat to public order (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 35).

The Committee notes the discussion which took place in the Conference Committee in June 2009. The Committee observes that in its conclusions the Conference Committee regretted that, although the Government had benefited from ILO technical assistance for some time now, including through a high-level mission, the legislative amendments requested for many years have yet to be adopted. The Conference Committee urged the Government to take the necessary measures so that the amendments requested by the Committee of Experts would finally be adopted. It further highlighted its outstanding calls to the Government to repeal the 1973 Decree, to amend the 1963 Public Order Act, as well as the Industrial Relations Act (IRA), and expressed the firm hope that meaningful and expedited progress would be made in the review of the Constitution before the Steering Committee on Social Dialogue, as well as in respect of other contested legislation and bills.

The Committee recalls that for many years it has been referring to certain provisions of the law that are inconsistent with those of the Convention and asked the Government:

–           to amend the legislation or enact other laws to ensure that domestic workers (section 2 of the IRA) have the right to organize in defence of their economic and social interests;

–           to amend section 29(1)(i) of the IRA placing statutory restrictions on the nomination of candidates and eligibility for union office, to enable such matters to be dealt with in the statutes of the organizations concerned;

–           to amend section 86(4) of the IRA to ensure that the Conciliation, Mediation and Arbitration Commission (CMAC) does not supervise strike ballots unless the organizations so request in accordance with their own statutes;

–           to recognize the right to strike in sanitary services (at present banned by IRA section 93(9)), and establish only a minimum service with the participation of workers and employers in the definition of such a service; and

–           to amend the legislation in order to shorten the compulsory dispute settlement procedures laid down in IRA sections 85 and 86, read in conjunction with sections 70 and 82.

The Committee takes note of the information provided by the Government on 22 May and 9 September 2009 on steps taken so far to amend the legislation on the abovementioned issues. In this regard, the Government indicates that the Labour Advisory Board has agreed in May 2009 on a finalized consensus document of proposed amendments to the Industrial Relations Act (IRA) of 2000, a copy of which was communicated to the Committee. As of September 2009, the Cabinet had received the draft bill scrutinized by the Attorney-General and would be passed into a bill. While taking note of the progress made in this regard, the Committee firmly hopes that the Industrial Relations (Amendment) Bill will be adopted without delay and expects that the Government will provide copy of the new Industrial Relations Act as amended in the near future.

Furthermore, the Committee recalls that its previous comments referred to other legislative issues and provisions that are inconsistent with those of the Convention, as well as a request for information on the effect given to some provisions in practice:

–           The repeal of the 1973 Decree/State of Emergency Proclamation and its implementing regulations concerning trade union rights, and the amendment of the 1963 Public Order Act so that it will not be used to repress lawful and peaceful strikes. On these matters, the Committee notes from the Government’s report that it was decided that constitutional review issues raised by the Committee be referred to the Legal and Institutional Affairs Subcommittee of the High-level Steering Committee on Social Dialogue. Concerning measures envisaged with regard to the 1973 Decree and the 1963 Public Order Act, the Committee notes the Government’s statement according to which it is in the process of reviewing, repealing and harmonizing all laws that may be in conflict with the Constitution of 2005.

–           The amendment of the legislation to ensure that prison staffs have the right to organize in defence of their economic and social interests. The Committee notes from the Government’s report that it has been recommended that the issue of the right to organize of prison staff should be addressed under the law governing the Prison Service (Correctional Services) and that consultations have already been initiated to review the Prisons’ Act.

–           Information on any practical application of section 40 of the IRA with regard to the civil liability of trade union leaders and, in particular the charges that may be brought under section 40(13); as well as information on the effect given in practice to section 97(1) (criminal liability of trade union leaders) of the IRA by ensuring that penalties applying to strikers do not in practice impair the right to strike. In this regard, the Government indicates that it would keep the Office informed of any development.

Recalling that the Conference Committee noted with concern that the Special Consultative Tripartite Subcommittee of the High-level Steering Committee on Social Dialogue had not met for several months, the Committee urges the Government to tackle all pending issues mentioned above in full consultation with the social partners as a matter of urgency. Consequently, the Committee firmly hopes that the Government will take without delay the necessary steps: (1) to abrogate the 1973 Decree/State of Emergency Proclamation and its implementing regulations concerning union rights; (2) to amend the 1963 Public Order Act so that it will not be used to repress lawful and peaceful strikes; (3) to amend the Prisons’ Act so as to guarantee that prison staff have the right to organize in defence of their economic and social interests; (4) to keep the Office informed of the practical application of section 40 of the IRA with regard to the civil liability of trade union leaders and section 97(1) of the IRA concerning criminal liability of trade union leaders, while ensuring their conformity with the principles enshrined in the Convention.

Taking into account that freedom of association and the effective recognition of the right to collective bargaining are particularly important to enable the attainment of the four strategic objectives of the Organization (see ILO Declaration on Social Justice for a Fair Globalization, 2008), the Committee encourages the Government as a matter of priority to engage with the Office, including through its technical assistance, so as to ensure the full application of the Convention.