Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the information supplied by the Government in its report.

The Committee notes with regret that, despite the assurances given by the Government in its previous reports that it was undertaking a review of the national legislation with a view to bringing it into conformity with the requirements of the Convention, the Government has confined itself to reiterating the comments and information supplied previously.

In these conditions, the Committee is bound to recall that for several years its comments related to the need to repeal or amend the following provisions of the Labour Code (Act No. 38 of 1964):

(a) - the exclusion from the scope of the Labour Code of employees of the State and the public sector, fixed-term workers employed by the State under the regulations concerning the employment of Indian and Pakistani citizens, domestic workers and employees holding similar positions, and seafarers (section 2);

- the requirement of at least 100 workers in order to establish a trade union (section 71) and ten employers to form an association (section 86);

- the requirement that non-Kuwaiti workers must reside in Kuwait for five years before being able to join a trade union, and the requirement that a certificate of good reputation and good conduct be obtained in order to join a union (section 72);

- the requirement that a certificate must be obtained from the Minister of the Interior stating that he has no objection to any of the founder members before a trade union may be established, and the requirement that at least 15 members must be Kuwaiti to establish a union (section 74); and

- the prohibition on the establishment of more than one trade union for a particular establishment or activity (section 71),

which are contrary to Article 2 of the Convention, which provides that workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization. The Committee also recalls that workers must be able, if they so wish, to establish trade unions outside the existing trade union structure;

(b) - the requirement that trade unions may federate only if they represent the same occupation or industries producing similar goods or providing similar services (section 79);

- the prohibition on organizations and their federations from forming more than one general confederation (section 80); and

- the system of trade union unity instituted by sections 71, 79 and 80 read together,

which are contrary to Articles 5 and 6, under which workers' and employers' organizations shall have the right to establish federations and confederations. The Committee emphasizes that trade union organizations must be able, if they so wish, to associate in federations and confederations outside the existing higher trade union structure;

(c) - the denial of the right to vote and to be elected of trade unionists who are not of Kuwaiti nationality, except to elect a representative whose only right is to express their opinions to the trade union leaders (section 72);

- the prohibition on trade unions from engaging in any political or religious activity (section 73);

- the broad powers of supervision of the authorities over trade union books and records (section 76); and

- the reversion of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution (section 77),

which are contrary to Article 3, which provides that workers' and employers' organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration without any interference by the authorities;

(d) - the restrictions on the free exercise of the right to strike (section 88), which is contrary to the principle that workers and their organizations should be able to organize their activities and formulate their programmes in defence of their economic, social and occupational interests, which may include calling a strike, without interference by the public authorities (Articles 3 and 10).

The Committee recalls in this respect that any restrictions to, or prohibition of, the right to strike should be confined to public servants exercising authority in the name of the State or to essential services in the strict sense of the term, that is services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see 1994 General Survey on Freedom of Association and Collective Bargaining, paras. 158 and 159).

The Committee requests the Government to indicate in its next report the measures which have been taken to bring the whole of the above legislation into conformity with the requirements of the Convention.