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STATEMENT ISSUED BY THE MINISTRY OF LABOUR AND SOCIAL SECURITY ON TWO ISSUES:

 

  1. Employment Bill in so far as it addresses labour brokering
  2. Putting to rest the recognition contestation between ATUSWA and SMAWU

 

Introduction

The Ministry of Labour and Social Security would like to take this opportunity to provide information to workers and employers in the country, in particular, and the public in general, on two very important issues that have been hogging the newspapers in the recent past in order to put these issues into their proper perspective.

  1. A. ALLEGATIONS ON THE BANNING OF LABOUR BROKERS AND SUB-CONTRACTORS IN THE COUNTRY

The nation will recall that there was a story published in the Observer on Saturday’s publication of the 27th July, 2019 on page 7 titled “Labour brokers fight back” attributed to Business Eswatini. Whilst the Ministry is an avid advocate of social dialogue and therefore encourages debate over issues of national importance such as this one, we viewed the article as unbalanced since the Ministry was not given an opportunity to make its comment on the issue. We would therefore like to take this opportunity to provide the nation with the correct information and the position of the Ministry on the issue as follows:

Legislative Process

First, there is currently no Employment Bill in place. This is the case because a government bill becomes one only after it has been approved by Cabinet and published by the Attorney General in the Government Gazette; and this has not happened. The correct position is that the Ministry is currently working on a draft Employment Bill, which has already gone through the Labour Advisory Board, which is a tripartite committee comprising of representatives of business, labour and government. Therefore, the draft Employment Bill is a product of laborious and lengthy tripartite consultations, engagements and debate. It is not a government draft Bill, neither is it a Tucoswa Bill as purported in the statement attributed to Business Eswatini  but a product of tripartite consultations. Business is fully represented by four persons in the LAB.

Second, the draft Employment Bill is still work in progress as it still has to go through a number of legislative structures for further debate and approval. The International Labour Organization still has to go through it to ensure that it fully complies with international labour standards and best practice. Once the ILO has done its part, the Attorney General will also work on it and format it into the local legal drafting style before it goes to Cabinet for its consideration and approval. Thereafter, the Attorney General will publish it in the Government Gazette in preparation for tabling before Parliament. The country’s Parliament will give all interested parties to make their comments on the Bill before it is passed into law. It is therefore, too early and devious for anyone to press the panic buttons and shoot at the draft Bill at this stage, and in the process create confusion when it has not even been approved by Cabinet to become an official government position on the issues contained therein. The Honourable Minister for Labour and Social Security was correct and within his rights and responsibilities when he informed  Parliament that the Employment Bill which addresses several issues include labor brokering was under preparation and that it will soon be brought to Parliament for consideration and hopefully enactment into law.

Allegations on banning of labour brokering and sub-contracting

Third, there is an ongoing debate over whether to ban or not to ban labour brokers in most parts of the world, including the Republic of South Africa, Namibia and other developing societies. Labour brokering, as a form of business, is seen to be working well in the developed countries where there are adequate social protection safety nets, such as: unemployment insurance funds; national health insurance; national pension funds; most citizens living above the poverty datum line old age and adequate disability grants, to mention a few. Most developing countries including the Kingdom of Eswatini do not have these.

Fourth, the nation is aware that the Ministry’s mandate is to promote decent work conditions in the world of work. Decent work sums up the aspirations of people in their working lives. It involves opportunities for work that is productive and delivers a fair income; security and occupational safety and health in the workplace and social protection for families; better prospects for personal development and social integration; freedom for people to express their concerns; organize and participate in the decisions that affect their lives and equality of opportunity and treatment for all women and men in the world of work. The ILO decent work agenda has four pillars, namely:   job creation, rights at work, social protection and social dialogue, with gender equality as a crosscutting objective.

Our view as government which we expressed clearly in the tripartite forum was anchored on the main challenge with this triangular form of employment, that it promotes the proliferation of the working poor and non-observance of the rights of workers in society. These include: poor pay, permanent casual employment, lack of access to long service benefits, no access to pension and medical aid, occupational safety and health and maternity leave benefits, sick leave, and annual leave in most cases. This form of employment also makes it almost impossible for workers to enjoy their right to join unions of their own choosing and collective bargaining, rights that are protected by our laws and the international labour standards.

The draft Employment Bill in its current form, and as agreed in the tripartite structure seeks therefore to, among other things, outlaw or ban triangular forms of employment due to the rampant abuse it exposes workers to, a situation which negates the country’s efforts of promoting the decent work agenda in the world of work. The exploitative nature of this form of business renders the promotion of the decent work agenda a nullity.

Furthermore, the draft Bill seeks to allow outsourcing on those aspects of business which are not part of the core business of an organization by their nature. Therefore, it is not correct to say the draft Bill is also seeking to ban outsourcing and sub-contracting. Therefore, we wish to allay any fears that may have been caused as a result of the ill-informed statements made by Business Eswatini in the newspapers. Contracting businesses, such as the building and construction, security industry, cleaning industry and many others will not be affected in any way when the draft Bill becomes law in as far as these do not constitute the core business of the enterprise.

Assuming Parliament passes the Bill in its current form there will be transitional arrangements that will be made to allow for a smooth transition of those sectors that will be affected when the draft Bill becomes law. 

  1. B. INTERVENTION OF THE COMMISSIONER OF LABOUR IN THE SWAZILAND MANUFACTURING AND PROCESSING (SMAWU) LEADERSHIP DISPUTE

The nation will also recall that since the registration of the Amalgamated Trade Union of Swaziland on the 16th of May, 2016 by the Commissioner of Labour, there has been a lot of confusion among workers and employers in the country pertaining to the question on whether or not the Swaziland Manufacturing and Allied Workers Union had amalgamated to form ATUSWA, something which has also led to the two unions running in and out of court for the past three years. The Ministry would therefore like to provide information to the affected workers and employers in the country in order to provide clarity and also put the matter into its correct perspective as follows:

  1. Registration of the Amalgamated Trade Union of Swaziland (ATUSWA)

The Amalgamated Trade Union of Swaziland was never registered as an amalgamation. ATUSWA was registered by the office of the Commissioner of Labour in terms of section 27 of the Industrial Relations Act, 2000 on the 16th May, 2016 as a separate union; distinct, parallel and separate from the Swaziland Manufacturing and Allied Workers Union. The following is the sequence of events around the registration of ATUSWA:

First, in September, 2013 eight unions, including SMAWU, allegedly met with the intention to amalgamate and form one mega union which was to be called “the Amalgamated Trade Union of Swaziland (ATUSWA)”. The Trade Union Congress of Swaziland then wrote in September, 2013 informing the Commissioner of Labour that eight unions had merged to form one mega union which was to be called the “Amalgamated Trade Union of Swaziland”. The federation further informed the Commissioner of Labour that an application for the union was to be lodged with the office in due course. Indeed, an application for registration was lodged by the Amalgamated Trade Union of Swaziland on the same month of September, 2013 with the Commissioner of Labour in terms of section 27 of the Industrial Relations Act, 2000.

After reviewing the application for registration, the Commissioner of Labour wrote to the union requesting for further information in terms of section 41 of the Industrial Relations Act, 2000 pertaining to the following: (i) copies of amended constitutions of the eight unions intending to amalgamate with provisions on amalgamation and (ii) minutes of the annual general meetings of each of the eight unions where they took the resolutions to dissolve their organizations in order to amalgamate with other unions to form one mega union “ATUSWA”. 

The Amalgamated Trade Union of Swaziland failed to furnish the Commissioner of Labour with the requested information, instead it reported the matter to the International Labour Organization in 2014. In its conclusions of the case, the International Labour Conference urged the Government to register the Amalgamated Trade Union of Swaziland notwithstanding their failure to comply with the law as regards the requested information.

The Commissioner of Labour thereafter met with ATUSWA in the presence of TUCOSWA to inform them that the office was eager to register the union, provided it furnished the office with the information it had requested, otherwise it would not be able to register it if it failed to comply with section 41 of the Industrial Relations Act, 2000. The union failed to furnish the office with the required information, instead it approached the courts for redress.

In May, 2016 the Commissioner of Labour met with officials from the Amalgamated Trade Union and TUCOSWA to further discuss the matter. The union officials requested the Commissioner of Labour to register ATUSWA as a separate and distinct union, not as an organization formed out of an amalgamation of several unions as it had earlier been intended, more so because even the application had been lodged in terms of section 27 not 41 of the Industrial Relations Act. The Commissioner of Labour then agreed to register the union under section 27 of the Industrial Relations Act, not as an amalgamation.

When the Commissioner of Labour enquired about the inclusion of the word “amalgamated” in the name of the union, raising a concern that it would cause confusion in the labour relations space, the union leaders pointed out that this was just a name, which did not mean that there was any amalgamation that had taken place. The officials further discouraged the Commissioner of Labour when he informed them that he would issue a public notice informing the public, particularly workers and employers that this union was not an amalgamation as its name suggests.

ATUSWA was then accordingly registered as a trade union, not an amalgamation on the 16th May, 2016. This was explained to Mr Wonder Mkhonza and Mr Zweli Sihlongonyane. It is also important to note that the office of the Commissioner of Labour is the registrar and regulator of labour market organizations in the country, hence it is the only authority in a position to know the nature and character of any registered labour market organization.

  1. Misrepresentation of the Amalgamated Trade Union of Swaziland to workers and employers

Immediately after the union had been registered, the same union officials from ATUSWA went about misrepresenting their union to workers and employers and in the process defrauding SMAWU of her union subscriptions deducted from SMAWU members from companies where SMAWU had recognition agreements. The SMAWU executive led by Justice Mtsetfwa then approached the office of the Commissioner of Labour to find out if ATUSWA had indeed amalgamated as it was claimed by the ATUSWA officials. The Commissioner of Labour informed Mtsetfwa and his team that there was never an amalgamation between SMAWU and ATUSWA, but these were two separate and parallel unions.

Confusion then reigned in the manufacturing and textile sector as the union continued to misrepresent itself to companies in these sectors. Some of the companies were informed by the office of the Labour Commissioner on inquiry that ATUSWA was not an amalgamation, but a stand-alone union, separate from SMAWU. However, these companies went ahead to recognize ATUSWA as an amalgamation at the expense of SMAWU, something which deprived SMAWU of her union dues.

The Justice Mtsetfwa SMAWU leadership, made an application to the Industrial Court for a declaratory order to the effect that there was no amalgamation by SMAWU with ATUSWA. The Court issued a judgement in favour of ATUSWA. The SMAWU leadership led by Justice Mtsetfwa then lodged an appeal with the Industrial Court of Appeal, where they appealed against the decision of the Industrial Court confirming ATUSWA to be an amalgamation. The Industrial Court of Appeal overturned the decision of the Industrial Court and correctly ruled that ATUSWA was not an amalgamation, but it was a union separate from SMAWU.

  1. Leadership Dispute within SMAWU

Immediately after the ruling of the Industrial Court of Appeal to the effect that an illegal election was held to elect a new national executive of SMAWU which sought to pursue the interests of ATUSWA and circumvent the judgement of the Industrial Court of Appeal to ensure that the purported amalgamated went ahead despite the court ruling.

The Justice Mtsetfwa led SMAWU leadership, which won the purported amalgamation at the Industrial Court of Appeal then lodged and application for intervention with the Commissioner of Labour in terms of section 82 of the Industrial Relations Act, 2000. Conciliation attempts by the Commissioner of Labour could not bear any meaningful results as they were frustrated by the illegally elected new national executive led by Samuel Dlamini, which demanded that certain individuals from the Justice Mtsetfwa led national executive be not part of the conciliation proceedings. The conciliation attempts were then abandoned.

  1. Directives of the Commissioner of Labour on the matter

In view of the protracted leadership dispute within the union which has taken over four years and in light of the onerous responsibility which the  office of the Commissioner of Labour is by law charged with, which is: to manage and promote harmonious industrial relations in the country; promote fair play among unions; uphold the rule of law; and also to protect the interests of the poor and voiceless workers; and in an effort to bring about full compliance with the letter and spirit of the Industrial Relations Act, 2000 and the Judgement of the Industrial Court of Appeal; the Commissioner of labour has since made the following directives on the matter:

  • The Justice Mtsetfwa led National Executive Committee which was in office before the purported amalgamation and which won the case in the Industrial Court of Appeal will take over leadership of SMAWU with immediate effect and will be in office on an interim basis until elections of a new national executive are held in September, 2020. The said national executive committee is comprised of the following members: Justice Thintitha Mtsetfwa, president; Melford Sithole, Vice President; Zweli Sihlongonyane, Secretary General; Rosemary Hadebe, Vice Secretary General; Donald Mncina, 2nd Vice Secretary General; Alfred Mkhotsane Dlamini, Treasurer; Subject Ginindza, Vice Treasurer; Faith Msibi, Trustee; Thabsile mamba, trustee; Zandile Dlamini, member; Joseph Sibandze, member and Gabsile Mkhonta, member.
  • All shop stewards who were in office before the purported amalgamation are to return back to office as such in all companies where SMAWU has a recognition agreement with immediate effect. The interim national executive committee will facilitate appointments of new shop stewards to fill in any vacancies which might have occurred over the passage of time, where necessary;
  • The national executive will open and operate a bank account whose signatories shall be the officers designated in terms of the union’s constitution;
  • The national executive shall collect all members’ subscriptions from all companies with whom the union has recognition agreements;
  • The national executive committee shall open an office within two months of getting back to office;
  • All funds that were unlawfully withdrawn from the old bank account of SMAWU should be paid back with immediate effect;
  • All funds paid unlawfully to ATUSWA by companies with recognition agreements with SMAWU should be paid back to SMAWU by those companies within 30 days from the date hereof;
  • The core purpose for the formation, registration and recognition of trade unions, being the negotiation of improved wages and better terms and conditions of employment should continue without any undue interference or unwarranted external interruptions;
  • The interim national executive committee shall carry out all its functions as articulated in the union’s constitution with immediate effect and shall cease to exercise such powers subsequent to official elections to be held in September, 2020 in terms of the union’s constitution.

 

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