Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Eswatini (Ratification: 1981)

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Article 1 of the Convention. Protection against discrimination. Private sector. Legislation. Employment Bill. The Committee takes note of the “Code of Good Practice: Employment Discrimination” that applies both to the public and the private sectors and provides that “every employer should take steps to eliminate discrimination in any employment policy or practice and must promote equal opportunity at the workplace”. The Committee further notes from the Government’s report under the Equal Remuneration Convention, 1951 (No. 100), that the National Gender Policy (reviewed) 2019–30 provides for the following definition of “discrimination”: “any distinction, exclusion or restriction which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by any person, of human rights and fundamental freedoms in the political, economic, social, civil and any other field”. It notes from the Government’s report under the Convention that, according to the Attorney General’s Office, the Employment Bill was at its final vetting stage in September 2022. It further notes that, according to information communicated to the ILO Office in Pretoria, the Bill is not adopted yet. The Committee nevertheless welcomes the inclusion in the Employment Bill, as approved by the Attorney General in November 2022, of provisions: (1) protecting not only employees but also explicitly part-time, casual and migrant workers against discrimination at all stages of employment, including recruitment; (2) prohibiting discrimination based “on any one or more grounds, including but not limited to colour, gender, race, religion, marital status or family responsibility, ethnic or social origin, pregnancy or intended pregnancy, sexual orientation, sex, tribal or clan extraction, political affiliation or opinion, culture, language, trade union, staff association or organization affiliation, social origin or status, health status, real or perceived HIV/AIDS status, age or disability, conscience, belief” (section 16(1)); and (3) defining and prohibiting “violence and harassment in the world of work”, including “gender-based violence” the definition of which indicates that it includes sexual harassment (sections 2 and 17(1)). The Committee observes however that the Employment Bill: (1) does not provide for a definition of “direct and indirect discrimination” nor an explicit reference to “national extraction” as a prohibited ground of discrimination (whereas “national origin” was mentioned in the 1980 Employment Act); (2) does not refer anymore to the ground of “sexual orientation” unlike the draft reproduced in the Government’s report; and (3) does not cover the Royal Eswatini Police Force, the Umbutfo Eswatini Defence Force and His Majesty’s Correctional Services. The Committee asks once again the Government to take steps without further delay towards the adoption of the Employment Bill. It trusts that this opportunity will be taken to: (i) include a definition of direct and indirect discrimination in line with Article 1 of the Convention; and (ii) add “national extraction” to the list of prohibited grounds of discrimination. It also asks the Government to: (i) provide information on the legislative developments regarding the adoption of the Employment Bill and a copy of the text once adopted; and (ii) indicate how it is ensured that employees excluded from the scope of the Employment Bill are protected against discrimination in law and in practice. Finally, the Committee asks the Government: (i) to provide information on the steps taken by employers to eliminate discrimination in any employment policy or practice and promote equal opportunity at the workplace, pursuant to the above Code of Good Practice; and (ii) to indicate whether such steps have been initiated or discussed with the Labour Inspectorate.

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