TUCOSWA Statement on the Lushaba Matter
Wednesday, July 25th, 2018
The Trade Union Congress of Swaziland (TUCOSWA) has been following with keen interest the events that have been obtaining in the public sector bargaining chamber between the Government and Public Sector Unions. Our attention was of late drawn to the Government’s delaying tactic which has now manifested itself into a gross violation of international labour standards.
The Government all of suddenly refused to continue the negotiations on the basis that the Secretary General of the Swaziland Nurses Association was no longer her employee and that they can’t negotiate with outsiders.
The SNA is a trade Union organization as envisaged by the Industrial Relations Act. It is not a Works Council. Trade Unions derive their fundamental rights and freedoms from the ILO Convention 87 on Freedom of Association and the Right to Organise. Article 3(1) of that Convention which the country ratified provides that, ” workers and employer organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes .
It continues in article 3(2) and provides that, ” the public authorities shall refrain from any interference which would restrict this right or impede lawful exercise thereof”.
In the Recognition Agreement between the Government and the SNA , the parties agreed to recognise the Association to mean the Swaziland Nurses Association and its Representatives. There is no where , where it was agreed that the recognition of such representatives shall be based on their employment status with the Government. If employers were given a lee-way to pick and choose Union representatives in total disregard of the trade Union bi-laws , that would clearly be a violation Convention 87 as more detailed above here.
The Government cannot prescribe who should be a Union representative in its dealing with a recognized Union.
Now we are inclined to deduce the source of the unending disputes with the public sector. It is now clear, the Government engage with the Unions with the mentality that the representatives are her employees and that they should remain in her employ.
What if Comrade was a Full-time Secretary General of the Union and in the Union’s payroll. The Government does not dispute that he is the Secretary General of the Union, but complains that he is no longer her employee. The SNA is not a Government Union, it’s an independent body entitled to recruit members even if they are outside government employment. Those members are entitled to contest for positions within the Union and become the Union’s representative.
We don’t agree with the final analysis of the Industrial Court in the matter. The court suggests that the recognition agreement between the government and the SNA precludes Union representatives who are not employed by the government to sit in the collective bargaining chamber.
It seems the Court approached the matter very narrowly and concluded that the meaning of a bargaining unit was in reference to the collective bargaining forum.
The bargaining unit defined in the recognition agreement referred to the scope of organizing by the Union , simple put, it refers to the categories of employees that the Union represents as envisaged by the Industrial Relations Act , section 42.
The definition of a member in the recognition agreement was meant to give clarity on who will be represented by the Union within the employees of the Government.
It does not relate to the member of the Negotiations Team of a party which should be left to each party’s collective character. There is no ambiguity in the current form of the recognition. Members of the negotiation forum ought to be recognized on their basis of being duly mandated representatives of the Association not on the basis of their employment status with the government.
What could happen in the workplace if this judgment could be left unchallenged? What could happen to Unions who are organized , say in more than 10 different employers? Would it mean that their Secretary Generals who can only be employed by one employer at a time, who sometimes could be the Union itself,can’t negotiate on behalf of the Union members where they are not employed?
We can’t go back to the era of Works Councils where worker representatives were employees of the employer and where the bargaining process was in actual fact a begging process in fear of victimization.
The Federation will use every available platform inside and outside the country to challenge this gross violation of worker and trade Union rights. We shall vehemently oppose the attack on the fiercely fought for, freedom of Association rights.
In closing, we are reminded of what the Hournarable Judge of the High Court, Judge Sipho Nkhosi is alleged to have said when commenting in a matter before him.
The Judge was reported by the Times of Swaziland of the 19th July 2018 to have said the following,
” That would be a wrong step for the country to take. We are taking so many wrong steps as country recently in our justice. ”
The Hournarable Judge is said to have passed these sentiments in a clear smell of the use of draconian habits allegedly by Government attorneys to achieve justice.
We are hereby calling upon the government to refrain from abusing its executive powers to distort the collective bargaining process in the workplace.
Issued by the TUCOSWA Secretariat.
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Mduduzi C Gina