With almost two and a half months to go before the May 15 deadline for Swaziland to meet the five conditions that will ensure continued AGOA eligibility.
With almost two and a half months to go before the May 15 deadline for Swaziland to meet the five conditions that will ensure continued AGOA eligibility, government has taken only one step in that direction.
On Valentine’s Day, Minister of Labour and Social Security Winnie Magagula tabled in parliament the Industrial Relations (Amendment) Bill of 2014, which will provide for the registration of federations and other incidental matters.
This is one of the conditions the United States of America has put forward as essential to Swaziland’s continued eligibility under the African Growth and Opportunity Act (AGOA). Federations that would be able to register are trade unions, staff associations and federation of employers.
The four other conditions are: full passage of amendments to the Suppression of Terrorism Act (STA); full passage of amendments to the Public Order Act; full passage of amendments to sections 40 and 97 of the Industrial Relations Act relating to civil and criminal liability to union leaders during protest actions; and establishing a code of conduct for the police during public protests. For now, there is still no indication on how government intends to meet these four.
In an exclusive interview with the Sunday Observer last week, USA Ambassador to Swaziland Makila James made it clear that it was a must for Swaziland to meet all five conditions, failing which, the kingdom would lose its AGOA status.
On the registration of federations, she noted that the Industrial Relations Act, in its current state, did not have such a provision.
“The Swaziland government has had this issue on its plate for several years. We understand that the Industrial Relations Act is now being looked at by government as a Bill was tabled in parliament by the ministry of labour this week, but the amendments have to be passed fully to allow for labour unions to work collectively to improve workers’ rights,” she said.
The amendments that were tabled by the labour minister on February 14, 2014 are yet to be debated by both Houses of parliament before either being passed or rejected. Though the Act will now allow for federations’ registration, strict conditions have been put in place for this to be possible.
These include that “a federation shall not engage in any activity outside the provisions of its constitution as well as any activities that are purely political in nature”.
It is well documented that labour federations have on many occasions been involved in political activities where they teamed up with political entities in holding public demonstrations where, amongst other matters, they protested against the country’s Tinkhundla system of governance.
For registration, a federation has to apply to the Commissioner of Labour who shall require specific information to determine whether or not requirements are met. Should the requirements not be met, according to the Commissioner, the application shall be rejected. Any person aggrieved by rejection of their application shall make an application to court for review. Even though the minister of labour has taken the first step to amend the Industrial Relations Act, her job is not yet done because she still has to amend sections 40 and 97 of the same law. These are in relation to civil and criminal liability to union leaders during protest actions.
Another ministry that has to come to the party is that of justice and constitutional affairs, which has to amend the Suppression of Terrorism Act (STA) and the Public Order Act.
The five AGOA
conditions
*Full passage of amendments to the Industrial Relations Act;
*Full passage of amendments to the Suppression of Terrorism Act (STA);
*Full passage of amendments to the Public Order Act;
*Full passage of amendments to sections 40 and 97 of the Industrial
*Relations Act relating to civil and criminal liability to union leaders during protest actions; Establishing a code of conduct for the police during public protests.
Shhhhh. . . for now, says government
The Swaziland government presently prefers keeping quiet on what is being done to get the kingdom out of the looming African Growth and Opportunity Act (AGOA) shutdown.
Percy Simelane, the Government Press Secretary, said lead stakeholders were working on the matter.
“We believe when they (stakeholders) are through, they will issue a report for public consumption. We therefore elect not to disturb them with propeller statements lest they are derailed and delayed unnecessarily,” he said.
Simelane added: “For now we shall play our cards closer to the chest.”
THE SECTIONS THAT NEED TO BE AMMENDED
Section 40 of the Industrial Relations Act, 2000:
Protest action to promote or defend socio economic interests.
40. (1) An employee who is not engaged in an essential service has a right to take part in a peaceful protest action to promote socio-economic interests of workers if -
(a) the protest action has been authorised by a registered organization or federation; and
(b) the organisation or federation has served notice to the Labour Advisory Board of its authorisation in terms of paragraph (a) which notice shall contain or state -
(i) the reason for the protest;
(ii) the nature of the intended action;
(iii) the steps taken to resolve the issues giving rise to the protest action;
(iv) measures taken to ensure the safety of protesters and any other persons as well as property; and
(c) the notice has been given at least twenty-one (21) days before the commencement of the protest action.
(2) The Labour Advisory Board, shall within the twenty one (21) days referred to in subsection (1), put in place mechanisms to resolve the issues giving rise to the protest action, which issues shall not include purely political matters.
(3) Where the matter is not resolved within the 21 day period, the party intending to take part in the protest action shall give written notice to the Labour Advisory Board of its intention to engage in such an action and the notice shall be served on the employer or employers’ organisation concerned and the Commissioner of Labour. The Commissioner of Labour shall, within seven (7) days on receipt of the notice arrange and supervise a secret ballot to determine whether the majority of employees whom it is proposed should take part in the protest action are in favour or not of taking such action.
(4) The Commissioner of Labour shall take all reasonable attempts to ensure that all employees who are within the terms of subsection (3) have an opportunity to vote in the ballot.
(5) There shall be a duty upon any employer within the terms of subsection (3) to supply the
Commissioner of Labour on request with the names of relevant employees, and any other information which the Commissioner of Labour may require, in order to conduct a ballot for the purposes of subsection (3).
(6) The Commissioner of Labour shall notify the result of the ballot to the parties within forty eight hours of the holding of the ballot and failure by the Commission to organise a ballot in conformity with this section shall not deprive an otherwise lawful protest action on the protection under this Act.
(7) Where a majority of employees voting in the ballot have voted in favour of the protest action, or where the Commissioner of Labour has failed to conduct or notify the result of the ballot under subsections (3) and (6) respectively, the protest action shall be deemed to be in conformity with this Act.
(8) For a protest action to be lawful under subsection (7) a new written notice shall be given by the party intending to engage in protest action to the Labour Advisory Board, the Commissioner of Labour and the Commission at least 48 hours before the commencement of such action.
(9) Any interested party aggrieved by the decision to take protest action may refer the matter to the Court for an order which may be granted by the Court under subsection (10).
(10) The Court shall have exclusive jurisdiction -
(a) to restrain an organisation or federation or any person from participating in a protest action or in any conduct in contemplation or in furtherance of protest action that does not comply with subsection (1); and
(b) in respect of protest action that complies with subsection (1), to grant a declaratory order after having considered -
(i) the nature and duration of the protest action;
(ii) the steps taken by the registered trade union or federation to minimise the harm caused by the protest action; and
(iii) the conduct of the participants in the protest action.
(11) A person who, and an organisation or federation which, takes part in protest action or in any conduct in contemplation or in furtherance of a protest action that complies with subsection
(1) enjoys the protection conferred in the case of a lawful strike.
(12) Notwithstanding the provision of sub-section (11), an employee forfeits the protection against dismissal conferred by that sub-section, if the employee -
(a) takes part in a protest action or any conduct in contemplation or in furtherance of a protest action in breach of an order of the Court;
(b) otherwise acts in contempt of an order of the Court made in terms of this section.
(13) Notwithstanding any other provision in this Act, if as a result of any protest action whether or not in conformity with this Section, any person suffers any damage to property, such person may institute any civil action in any appropriate court to seek redress from any person, organisation or federation responsible for causing such protest action as the court deems necessary including an order for sequestration.
(14) For purposes of this section, a decision whether a protest action should be embarked upon or not shall be by majority of all the members of the organisation or federation referred to in subsection (1).
