The laws provide that workers, except for those in essential services, 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 often abrogate them. The laws 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 workplace to be automatically recognized. Otherwise, recognition was left to the discretion of employers.
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 (IRA) 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.
According to the IRA, 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 that are of direct concern to the workers but shall not include matters of a purely political nature.” Extensive provisions allow workers to seek redress for alleged wrongful dismissal. 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 postal services, 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 on workers for damages caused by strike actions. For example, the trade union and its leadership face civil liability and criminal liability for any damage caused and other “unlawful behavior” during strikes.
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.
The government did not effectively enforce these laws. 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 was consistently 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 International Trade Union Confederation also reported trade union activities continued to be repressed and that arbitrary arrests and detentions, intimidation, and physical violence were used to silence activists.
On October 8, the labor minister announced the banning of all federations in the country and ordered existing federations to cease operations pending the passing of the IRA amendment that would allow the registration of federations. This amendment became law on November 12 after the king’s assent. Federations must submit their constitutions to the government and apply for registration. Additionally, civil society organizations as well as international labor organizations viewed the banning of federations and the long delay in passage of the IRA amendment as a government attempt to annihilate TUCOSWA.
To prevent a public march on April 12, Mbabane police detained trade union leaders in their homes and then drove them around for several hours. Police left them on the side of the highway more than 11 miles from their homes. The POA was used as the legal basis for the detention and refusal to allow the march.
On August 6, the prime minister reportedly made threats against TUCOSWA Secretary General Vincent Ncongwane and human rights activist Sipho Gumedze, who attended a foreign conference, but he subsequently withdrew his remarks on August 10, after receiving strong criticism from international and diplomatic communities. On August 27, police detained TUCOSWA members and questioned them for several hours about a prayer service held at a textile factory. On September 4, citing the POA, police stopped 12 members of TUCOSWA from delivering to the Ministry of Labor and Social Security a petition decrying the country’s loss of certain foreign tariff-free benefits.
On October 1, approximately 500 security guards from various companies marched to the Ministry of Labor and Social Security to deliver a petition to the minister. Marchers wielded large sticks as they wound through city streets in Mbabane and chanted labor solidarity songs. Police officers moved around the protesting security guards, but they did not react violently nor attempt to halt the march. The security guards’ primary demand included the closure of noncompliant security services companies who were underpaying their employees and prosecution of such companies for owing past-due wages. The petition stated that only six of 86 security companies were paying employees according to the stipulated minimum wage. The guards threatened a mass nationwide strike if their demands were not met, but they did not give the ministry a deadline. The security guards’ march was organized by the Amalgamated Trade Union of Swaziland.
In 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 IRA, 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 IRA 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 IRA allowing for the registration of federations, ostensibly to mollify the ILO and other international observers. Early in the year, a law seeking to amend the IRA was presented in parliament but later withdrawn by the minister of labor and social security, and no reasons were given for its withdrawal. TUCOSWA continued to seek recognition, and the government and courts continued to state that the law does not allow for federations. In November the king assented to an amendment to the law, after its passage by parliament, which allows for the registration of federations. TUCOSWA must now apply for registration with the government.
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.