Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report. It also notes the draft amendments to the Private Sector Labour Code provided by the Government as well as the report of the ILO mission, which recently visited the country.

The Committee recalls that it has commented for several years on the need to repeal or amend the following provisions of the Labour Code (Act No. 38 of 1964), which are contrary to the Convention.

Article 2 of the Convention

-  The exclusion from the scope of the Code, and thus from the protection afforded by the Convention, of domestic workers (section 2 of the Code as modified in 1996).

-  The requirement of at least 100 workers to establish a trade union (section 71) and ten employers to form an association (section 86).

-  The prohibition to join a trade union for individuals of under 18 years of age (section 72).

-  The requirement of five years’ residence in Kuwait for non-national workers before they may join a trade union, and the requirement that a certificate of moral standing and good conduct delivered by the competent authority be obtained in order to join a trade union (section 72).

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

-  The prohibition to establish more than one trade union per establishment, enterprise or activity (section 71).

Article 3

-  The ban on the right to vote and to be elected to trade union office for unionized workers not of Kuwaiti nationality, except to elect a representative having the right only to voice their opinions with the Kuwaiti union officers (section 72).

-  The prohibition on trade unions from engaging in any political activity (section 73).

-  The wide powers of supervision of the authorities over trade union books and registers (section 76).

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

Articles 5 and 6

-  The restriction imposed on trade unions to join federations only where the activities are identical, or where industries are producing the same goods or supplying similar services (section 79).

-  The prohibition for organizations and their federations to establish more than one general confederation (section 80).

-  The single trade union system established under sections 71, 79 and 80, read together.

The Committee notes with interest that in the latest draft amendments to the Labour Code of 1964 provided by the Government, it appears that all the sections which previously imposed trade union monopoly at the enterprise and national level, have been removed. It further notes that section 95 of the draft amendments provides that the provisions of the law are applicable to the workers in the private sector, as well as workers in both government and oil sectors provided they shall not conflict with the laws regulating them. In this regard, while noting the positive steps taken by the Government, the Committee would request it to confirm that the right to organize is indeed granted to civil servants and workers in the oil sectors.

Article 2.

The right to organize of domestic workers. The Committee notes the Government’s information according to which it has taken into account domestic workers in the draft Labour Code and that section 5 of the new draft specifies that the minister shall issue an order on the rules that regulate the relations between employers and domestic workers. In this regard, the Committee recalls that Article 2 of the Convention applies to all workers without distinction, including domestic workers, who should therefore be covered by the guarantees it affords and should have the right to establish and join occupational organizations. (see 1994 General Survey on freedom of association and collective bargaining, paragraph 59).

Articles 2 and 3.

Trade union rights of migrant workers. The Committee notes that section 96 of the draft amendments provides that all Kuwaiti workers shall have the right to establish trade unions. This provision would appear to be more restrictive than section 72 of the current Labour Code which refers to a five-years’ residence requirement in Kuwait for non-nationals to join a trade union. In this respect, the Committee recalls that restrictions on the right to organize based on nationality may, in particular, prevent migrant workers from playing an active role in the defence of their interests, especially in sectors where they are the main source of labour. The right of workers, without distinction whatsoever, to establish and join organizations implies that anyone legally residing in the territory of a given State benefits from the trade union rights provided by the Convention, without any distinction based on nationality (see General Survey, paragraph 63). The Committee therefore requests the Government to indicate the measures taken or envisaged to ensure that foreign workers in Kuwait are guaranteed the right to organize and that they may be eligible for trade union office, at least after a reasonable period of residence (see General Survey, paragraph 118).

Article 3.

The right of workers’ organizations to organize their administration and activities.With regard to the global prohibition of political activity and the need for approval of the ministry in order to receive gifts or bequests, the Committee notes that these points have not been modified and still appear in section 101 of the draft amendments. The Committee is of the view that legislative provisions which prohibit all political activities for trade unions give rise to serious difficulties with regard to the principles of the Convention. Some degree of flexibility in the legislation is therefore desirable so that a reasonable balance can be achieved between the legitimate interest of organizations in expressing their point of view on matters of economic and social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities, on the other (see General Survey, paragraph 133). Furthermore, the Committee considers that problems of compatibility with the Convention may arise when the law requires that certain financial operations, such as the receipt of funds abroad, be approved by the public authorities (see General Survey, paragraph 126). The Committee therefore requests the Government to take the necessary measures to ensure that the Labour Code is amended in the light of these principles.

Article 4.

The right not to be dissolved by administrative authority. The Committee notes with concern that, under section 104 of the draft amendments, it appears that workers’ and employers’ organizations may be dissolved by virtue of a decision by the Council of Ministers upon the advice of the competent minister. In this regard, the Committee would first recall that the Labour Code currently in force, as well as previous drafts examined by the Committee, limited dissolution to voluntary dissolution and legal dissolution based on a court ruling. The Committee recalls that the possibility of administrative dissolution as set out in section 104 of the most recent draft involves a serious risk of interference by the authorities in the very existence of organizations and should therefore be accompanied by judicial safeguards, in order to avoid the risk of arbitrary action. While it is preferable for legislation not to allow dissolution or suspension of organizations by administrative authority, if it does, the organization affected by such measures must have the right of appeal to an independent and impartial judicial body which is competent to examine the substance of the case and, where appropriate, to rescind such measure; moreover, the administrative decision should not take effect until a final decision is handed down (see General Survey, paragraph 185). The Committee therefore trusts that the Government will take the necessary measures to ensure that any administrative dissolution may be appealed to a judicial body and will be accompanied by the above-noted safeguards.

While noting with interest that several of the draft amendments appear to eliminate earlier sections of the Labour Code which were not in conformity with the Convention, and that the Government has submitted a proposal to amend section 71 (concerning the requirement of 100 workers to form a union) of the current Labour Code of 1964 until the new draft Labour Code is adopted, the Committee nevertheless observes that some important discrepancies remain between the draft law and the provisions of the Convention. Therefore, it expresses the firm hope that the necessary measures will be taken in the near future to bring the legislation into conformity with the Convention in respect of the abovementioned issues and trusts that the other points which had been raised in its previous comments will also be fully addressed in the new Code. The Committee requests the Government to indicate in its next report the progress made in this regard and supply copies of any further drafts or adopted version of the Code.