The ITUC affiliate in Swaziland is the Trade Union Congress of Swaziland (TUCOSWA).
Freedom of association / Right to organise
The law does not specifically protect workers from anti-union discrimination.
Barriers to the establishment of organisations:
- 'Prior authorisation or approval by authorities required for the establishment of a union'
- The Commissioner of Labour decides on the registration of trade unions. S/he may ask for any information in support of the application (Art.27 Industrial Relations Act).
Restrictions on trade unions' right to organise their administration:
- Restrictions on the right to freely draw up their constitutions and rules
- The law imposes substantive requirements on trade union constitutions, for example that a general meeting open to all members shall be held once a year and decisions to be taken during the general meeting (Art.29 Industrial Relations Act). Only fully paid up members are permitted to be members of unions and are allowed to participate in votes (Art. 20 and 30 Industrial Relations Act).
Categories of workers prohibited or limited from forming or joining a union, or from holding a union office:
- Export processing zone (EPZ) workers
- Workers in export processing zones are not allowed to form trade unions.
- Others categories
- The Law bans prison staff from joining trade unions.
Right to collective bargaining
Barriers to the recognition of collective bargaining agents:
- Undue requirements regarding trade unions' structure, composition and affiliation
- Art. 42 (3) Industrial Relations Act: If paid up union members represent less than 50 per cent of all workers in the bargaining unit, recognition for bargaining purposes shall be at the discretion of the employer.
Right to strike
Barriers to lawful strike actions:
- Obligation to observe an excessive quorum or to obtain an excessive majority in a ballot to call a strike
- After a dispute has been declared unresolved, the union may give strike notice to the Commissioner of Labour at least seven days before the strike. The Commissioner of Labour then holds a strike ballot and the majority of all employees have to vote in favour of the strike as a precondition. After a successful strike ballot the union has to obey another 48 hours notice requirement (Art.86 Industrial Relations Act).
Ban or limitations on certain types of strike actions:
- Restrictions with respect to the objective of a strike (e.g. industrial disputes, economic and social issues, political, sympathy and solidarity reasons)
- Strikes are only permitted in the case of unresolved disputes which implies that sympathy strike are prohibited (Art.86 Industrial Relations Act).
- Restrictions with respect to type of strike action (e.g. pickets, wild-cat, working to rule, sit-down, go-slow)
- Protest action can only be taken after giving 21 days advance notice to the Commissioner of Labour explaining the reasons and nature of the protest action. Unions may not engage in purely political protest action. The Commissioner of Labour carries out a secret ballot to determine whether the majority of employees are in favour of protest action. After a ballot has been successful the union shall give another notice- at least 48 hours before the protest action (Art. 41 Industrial Relations Act).
Undue interference by authorities or employers during the course of a strike:
- Authorities' or employers''' power to unilaterally prohibit, limit, suspend or cease a strike action
- Art.89 Industrial Relations Act: The Minister of Labour may ask the Court to declare a strike illegal if s/he considers that it would threaten “national interest.”
- Authorities' or employers' power to prevent or end a strike by referring the dispute to arbitration
- Art.96 Industrial Relations Act: Unresolved disputes in essential services can be referred to compulsory arbitration unilaterally.
Undermining of the recourse to strike actions or their effectiveness:
- Excessive sanctions for damages caused by strike actions
- Trade unionists participating in the protest action remain liable under the civil and criminal law (Art. 41 (13) Industrial Relations Act).
Limitations or ban on strikes in certain sectors:
- Discretionary determination or excessively long list of "essential services" in which the right to strike is prohibited or severely restricted
- Art.93 Industrial Relations Act: Strikes are prohibited in essential services which include sanitary services, telecommunication and telegraphic services.
Vincent Ncongwane, General Secretary of the Trade Union Congress of Swaziland, was arrested and put under house arrest for attempting to stage an illegal protest on 5 September 2013. TUCOSWA fully complied with Swazi laws by announcing a protest march for the Global Week of Action on 15 August 2013 to both police and the Commissioner of Labour. The Commissioner of Labour claimed not to have received the notice and argued that TUCOSWA may not organise any protests because it is not a registered trade union federation.
Jay Naidoo, Alec Muchadehama, Paul Verryn who were invited as international experts to act as panellists during the Global Inquiry Panel Swaziland as well as Paliani Chinguwo from the Southern African Trade Union Coordination Council (SATUCC) were questioned at the police station upon arrival in Manzini on 5 September 2013.
On 4 and 5 September police followed staff from the ITUC, COSATU, FES/DGB and Industriall around the clock. A few hours before the Global Inquiry Panel Swaziland was scheduled to begin, police and military entered the venue and blocked the meeting room. Senior police officers stated they had verbal instructions to prevent the inquiry but were not able to produce a court order.
No Wage Councils have been held for three years to negotiate wages in the commercial, retail and wholesale sectors. There is also an enforcement problem, as grievance mechanisms such as the Conciliation Mediation and Arbitration Commission have been unable to enforce decisions given the backlog of cases before the Industrial Court.
The Industrial Relations Act (section 45) also promotes the establishment of Joint Negotiating Councils (JNC) to bargain over working conditions at the sectoral level. So far, only one JNC was established in the textile industry in 2005 between the Swaziland Textile Exporters Association (STEA) and the Swaziland Manufacturing and Allied Workers Union (SMAWU). But before an agreement could be reached, the STEA disbanded as a reaction to requests by the SMAWU to negotiate pay increases.
To mislead the international community, the Swaziland Economic Empowerment Workers Union was recognised as the body that should represent Swazi workers at the ILO. The manner in which the union was established and whether it has any membership remains unclear. Yet, it is evident that it is used to undermine legitimate unions.
Prime Minister Sibusiso Barnabas Dlamini, when addressing heads of government parastatal companies, warned that management should only negotiate with unions that are “recognised by and working within the Swazi legal system”. This implies that the government encourages managers not to negotiate with TUCOSWA.
Police raided the head offices of TUCOSWA at 8 am on 1 May 2013, arresting the President of TUCOSWA, Barnes Dlamini, and the 1st Deputy Secretary General, Mduduzi Gina. Their arrests followed that of Vincent Ncongwane, Secretary General of TUCOSWA, Muzi Mhlanga, 2nd Deputy Secretary General, and Jabulile Shiba, the Deputy Treasurer General, who were all placed under house arrest that morning. May Day celebrations organised by TUCOSWA at the Salesian Sports Ground in Manzini were forced to be called off, as police prohibited workers from shouting TUCOSWA slogans or from displaying TUCOSWA banners.
On 9 March 2013, police violently stopped a prayer meeting on TUCOSWA’s anniversary. Police, carrying batons, took control of the Caritas Centre and stopped a commemoration prayer. The Swazi Government had, without a court order, decided that the prayers, organised by TUCOSWA were illegal because the workers’ group was not officially registered with the state.
On 12 April 2013, Wander Mkhonza was again arrested in Lavumisa Border Gate on allegations that he was in possession of seditious pamphlets belonging to a political organisation.
On 13 September 2012, the government withdrew charges against six of the seven suspended teachers who participated in the indefinite strike. The teachers had been charged with vandalism during a picket organised by the Swaziland National Association of Teachers.
The Industrial Relations Act (Article 40) provides for the civil and criminal liability of trade union leaders for legitimate trade union activities.
The Commissioner of Labour and the Attorney General decided on the de-registration of the Trade Union Congress of Swaziland (TUCOSWA) after TUCOSWA announced its campaign for free and fair elections. The Industrial Court ruled on 27 February 2013 that the Industrial Act does not provide for the registration of federations and asked the government to determine a modus operandi for registration together with TUCOSWA. In addition, all affiliates of TUCOSWA have petitioned the government to recognise TUCOSWA as their legitimate representative. The government refuses to meet TUCOSWA and to recognise it as a legitimate federation.
During a ceremony on 1 April to hand over office to his successor former Police Commission, Edgar Hillary, restated his firm opposition to trade unions in the police. He stated that “a union has no place in the police service or any disciplined force. Unions in such formations can only cause division, uncertainty and anarchy”. The ILO still leaves the question of trade unions in the police and armed forces to the discretion of Member States.
In an interview given to a London student’s newspaper in February 2010, B.V. Dlamini, deputy secretary general of the Swaziland Federation of Trade Unions (SFTU) described the trade union rights situation in the country as follows: “When workers go on strike, the government sends the police to beat the hell out of them. There are even cases where police agents were shooting the workers just because they went on strike, demanding better working conditions”. The government said that it was “not going to tolerate [strikes], because it will chase [away] investors”. Mr. Dlamini also explained that while Swaziland was often one of the first countries to ratify international conventions, including ILO Conventions, it was usually also the first to violate them.
The textile sector has become notorious for its anti-labour and anti-union practices, particularly foreign-owned companies, principally from Taiwan, who employ a mainly female workforce. Any protests about their poor working conditions are dealt with severely. In March 2008, police intervened against thousands of textile workers engaged in a legal strike to demand higher wages. The workers, mainly women, were hit with tear gas canisters, beaten heavily with batons and shot at with what were suspect to be live rounds.
The authorities have continued to refuse recognition to the Swaziland Police Association (SPA) and the Swaziland Correctional Service Union (SWACU). Additionally, union activity is not effectively protected against employers’ interference, although the law protects unions from governmental interference. It has been reported that employers’ interference with workers’ councils has contributed to the failure of some trade unions to negotiate collective agreements. Furthermore, there are reports that some employers dictate which decisions are taken in the workers’ councils.
In the absence of any credible political opposition, trade unions in Swaziland have been in the forefront of efforts to promote democracy. As a result, they have been a target of constant harassment and repression. Union leaders have been arrested, protesters beaten and political parties banned. Speaking at the International Labour Conference in June, the General Secretary of the Swaziland Federation of Trade Unions (SFTU), Jan Sithole reported that he had been a victim of police harassment and arrests, and that he and his family have been receiving death threats. At the end of its proceedings, the Conference’s Committee on the Application of Conventions and Recommendations of the ILO devoted a special paragraph to Swaziland in its report, a measure reserved for the worst cases of rights violations.