The laws provide that workers have the right to form and join independent unions, conduct legal strikes, and bargain collectively. These rights were not uniformly applied, however, since provisions of other laws restricting freedom of assembly and association might abrogate them. The laws explicitly provide for the registration of unions and federations but grant far-reaching powers to the labor commissioner with respect to determining eligibility for registration. Unions must represent at least 50 percent of employees in a work place to be automatically recognized. Otherwise, recognition is left to the discretion of employers. According to the Industrial Relations Act of 2000, as amended, employees who are not engaged in “essential services” have the right to undertake peaceful protest actions to “promote or defend socio-economic interests” of workers. The Act, however, defines “socio-economic interest” as including “solutions to economic and social policy questions and problems which are of direct concern to the workers but shall not include matters of a purely political nature.” Employees in essential services, which included police and security forces, the HMCS, firefighters, health-care providers, and many civil service positions, may not form unions. Extensive provisions allow workers to seek redress for alleged wrongful dismissal.
While the laws allow unions to conduct their activities without government interference, and prohibit antiunion discrimination, certain laws allow broad government discretion to intervene in and interfere with unions’ activities.
Although the law permits strikes, the right to strike is strictly regulated. Strikes and lockouts are prohibited in essential services, while the minister’s power to modify the list of these essential services provides for broad prohibition of strikes in nonessential sectors, including posts, telephone, telegraph, radio, and teaching. The procedure for announcing a protest action requires advance notice of at least 14 days. The law details the steps to be followed when disputes arise and provides penalties for employers who conduct unauthorized lockouts. When disputes arose with civil servant unions, the government often intervened to reduce the chances of a protest action, which may not be called legally until all avenues of negotiation have been exhausted and a secret ballot of union members has been conducted. The law imposes disproportionately harsh sanctions for damages caused by strike actions. For example, the trade union faces civil liability and criminal liability for any damage caused and other “unlawful behavior” during strikes.
The constitution and law provide for the right to organize and bargain collectively, subject to various legal restrictions. The law gives employers discretion as to whether or not to recognize a labor organization as a collective employee representative if less than 50 percent of the employees are members of the organization. In a case where an employer agrees to recognize the organization as the workers’ representative, the law grants the employer the ability to set conditions for such recognition. The law provides for the registration of collective agreements by the Industrial Court, which is empowered to refuse registration if an agreement conflicts with the Industrial Relations Act or any other law, provides terms and conditions of employment less favorable to employees than those provided by any law, discriminates against any person, or requires membership or nonmembership in an organization as a condition for employment. The law also provides for the establishment of a conciliation, mediation, and arbitration commission for dispute resolution but confers on the commissioner of labor the power to “intervene” in labor disputes before they are reported to the commission, if there is reason to believe that a dispute could have serious consequences for the employers, workers, or the economy if not resolved promptly.
The government did not effectively enforce these laws. While generally protected by law, freedom of association and the right to collective bargaining were not consistently respected. The government perceived some unions as political opposition and therefore restricted their rights. In certain cases, workers who attempted to exercise the rights to organize and bargain collectively faced difficulties or risks due to a harsh legal environment imposed by provisions in the labor and the security laws. HMCS staff continued to be denied the right to collective bargaining. While the government controlled no worker organizations, it may prohibit trade unions and other worker organizations from engaging in certain activities when those activities are deemed “political” in nature. In addition, the logistical requirements involved in registering a legal strike made striking difficult.
Government interference in union affairs has consistently been a problem under examination by the International Labor Organization (ILO), particularly concerning public service unions.
At issue was continued government action to disrupt or repress trade unions’ lawful and peaceful activities. The government continued to use certain laws, including the 2008 Suppression of Terrorism Act and the 1963 Public Order Act, to interfere in trade unions’ affairs--in particular, gatherings or other activities that were viewed as “political.”
The ITUC reported trade union activities continued to be repressed and that arbitrary arrests, detentions, intimidation, and physical violence were used to silence activists. For example, the ITUC reported that in March police violently stopped a prayer meeting of the Trade Union Congress of Swaziland (TUCOSWA) basing their action on the Public Order Act. Police, carrying batons, took control of the Caritas Center and stopped the commemoration prayer.
On April 11, police summoned four activists who were scheduled to speak at a panel discussion organized by the Swaziland United Democratic Front in Manzini related to the anniversary of the 1973 Decree. Police told them to “postpone” the panel discussion. When the organizer and panelists insisted on holding the panel discussion, approximately 40 police officers, including officers in full riot gear, removed them from the steps and shoved all onlookers from the area.
On May 1, during the worker’s day celebration, police raided the head offices of TUCOSWA and arrested the president and first deputy secretary general of the labor federation. They placed five members of TUCOSWA under house arrest in a bid to disturb the May Day celebrations and stated TUCOSWA did not have legal status as a federation since the government delisted it in spring--less than two months after its registration.
On September 5, police picked up two leaders of the Swaziland Democratic Nurses Union for questioning. They told the leaders that union members were under strict police surveillance. On September 6, police prevented participants in a Global Inquiry panel from entering the Tums George Hotel in Manzini stating they were executing an order from the head of government and further ordered facilitators from the ITUC to leave the country immediately. On September 6, police at Motshane stopped a group of members of the Swaziland National Association of Teachers and the secretary general of TUCOSWA and barred them from leaving the country to attend a meeting of the Congress of South African Trade Unions in South Africa.
In April 2012 the government deregistered the newly formed TUCOSWA labor federation. Just weeks after the labor commissioner signed TUCOSWA’s certificate of registration and the minister of labor and social security recognized it, the attorney general declared that TUCOSWA had been “erroneously registered” under the Industrial Relations Act, which governs all labor-related activity. Despite the fact that labor federations have operated in the country for decades, the attorney general argued that the law actually provided only for the registration of “organizations” and not “federations.” Government officials removed TUCOSWA from the list of registered organizations in the country but promised to amend the Industrial Relations Act to provide for the registration of federations. The deregistration occurred just days after TUCOSWA announced it would support a boycott of legislative elections. The Ministry of Labor drafted an amendment to the Industrial Relations Act allowing for the registration of federations, ostensibly to mollify the ILO and other international observers, but at year’s end parliament had not passed the amendment.
On September 6, when an ITUC delegation visited the country in the weeks following the deregistration of TUCOSWA, the minister of labor and social security warned workers that local unions could not invite ITUC trade unionists from other countries without permission from the government.
During the year there were allegations that employers used labor brokers to hire individuals on contracts to avoid hiring those who would normally be entitled to collective bargaining rights. No laws govern the operation of labor brokers. Reports suggested labor brokers fraudulently recruited and charged Swazi nationals excessive fees for work in South African mines--a means often used to facilitate forced labor.
Other concerns identified by unions were undefined hours of work and pay days; assaults on workers by supervisors; surveillance of trade union activity by hired security officers, both at the workplace and outside; and the use of workers’ councils stacked with employer-picked representatives to prevent genuine worker representation.