The laws provide that workers have the right to form and join independent unions, conduct legal strikes, and bargain collectively. However, these rights were either restricted or strictly regulated. The law explicitly provides for the registration of unions and federations but grants 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 socioeconomic interests” of workers. The act, however, defines “socioeconomic 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, HMCS, firefighting, health, and many civil service positions, may not form unions. There were extensive provisions allowing 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 and interfere with unions’ activities.
The law permits strikes; however, the right to strike was strictly regulated. Strikes and lock-outs are prohibited in essential services, while the minister has the power to modify the list of these essential services, which provides for broad prohibition on 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; however, the right is 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 in the case where 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, it is granted the ability to set out the conditions under which it agrees to 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 the law confers on the commissioner of labor the power to “intervene” in labor disputes before being reported to the commission, if she or he has reason to believe that such disputes could have serious consequences for the employers, the workers, or the economy.
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 in practice. 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, and there were reportedly problems in the banking sector with respect to such right. While there were no worker organizations that were controlled by the government or employers, trade unions and other worker organizations may be prohibited 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 in practice. There were unconfirmed reports of acts of antiunion discrimination in the textile sector.
Government interference in union affairs has consistently been an issue under examination by the International Labor Organization (ILO), particularly those unions in the public service.
At issue was continued government action to disrupt or repress trade unions’ lawful and peaceful activities. Certain laws, including the 2008 Suppression of Terrorism Act and the 1963 Public Order Act, continued to be used to interfere with trade unions’ affairs, especially gatherings or other activities that were viewed as “political.” The International Trade Union Confederation reported that trade union activities continued to be repressed. Arbitrary arrests, detentions, intimidation, and physical violence were reportedly used to silence activists.
On January 19, police attempted to stop a TUCOSWA-organized meeting set up to discuss the government’s plan to introduce a value-added tax. Shoving and pushing occurred, but the police backed down when the organizers refused to disperse.
On February 25, police prevented a political rally of the AUDP from taking place at Mhlaleni.
On April 5, the government deregistered the newly formed labor federation TUCOSWA. Just weeks after the country’s labor commissioner signed its 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 kingdom’s Industrial Relations Act, which governs all labor-related activity. Despite the fact that labor federations have operated for decades, the attorney general argued that the law actually provides only for the registration of “organizations” and not “federations.” Government officials removed TUCOSWA from the list of registered organizations but promised to amend the Industrial Relations Act to provide for the registration of federations. The deregistration occurred just days after TUCOSWA announced that it would support a boycott of the 2013 legislative elections. At year’s end the Industrial Relations Act had not yet been amended, and TUCOSWA remained an unrecognized entity.
On May 21, the minister of labor and social security warned workers in the kingdom that local unions cannot invite trade unionists from other countries without permission from the government; unionists from the United Kingdom and the Netherlands visited the country in the weeks following the deregistration of TUCOSWA.
On July 11, peaceful protest actions by NAPSAWU, the Swaziland Transport and Allied Workers’ Union (STAWU), and the SNAT were met with police teargas, batons, and rubber bullets. The NAPSAWU president was arrested while he was on his way to support the teachers’ strike.
During the first week of August, the government fired more than 100 teachers in retaliation for the educators’ six-week strike action to demand a 4.5 percent pay increase. According to government the teachers had participated in illegal strike actions and were therefore subject to dismissal. According to lawyers representing the teachers, the firings did not proceed in accordance with the law and were therefore illegal themselves. On August 3, the Industrial Court issued a temporary halt to the firings, and after an August 6-11 “sibaya” (national gathering) at which King Mswati III’s speech was interpreted as meaning that the teachers should go back to work, the educators were reinstated. At year’s end the teachers had not yet received a pay increase.
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. There are no laws governing the operation of labor brokers.
Other concerns identified by unions were undefined hours of work and pay days; assaults on workers by supervisors; surveillance by hired security officers of trade union activity, both at the workplace and outside; and the use of workers’ councils stacked with employer-picked representatives to prevent genuine worker representation.