Solicitud directa (CEACR) - Adopción: 2010, Publicación: 100ª reunión CIT (2011)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) dated 24 August 2010, as well as the Government’s reply thereon.

The Committee notes with satisfaction that the New Private Sector Labour Law No. 6 of 2010 was promulgated in February 2010, and that the fifth Book of the Law regulates workers’ and employers’ organizations as well as trade union rights. The Committee notes in particular, that section 98 of the Law provides for the right of workers and employers to establish organizations in both the public and private sectors, and that sections 111–132 of the Law regulate collective labour agreements and collective labour disputes.

The Committee also takes note of the report of the ILO’s technical assistance mission to Kuwait held on 6–11 February 2010.

Scope of application of the Convention. In its previous comments, the Committee noted the observations made by the ITUC, according to which domestic workers, migrant workers and maritime workers were excluded from the scope of application of the draft Labour Law. The Committee notes that the new Labour Law applies to the private sector, including employees of the oil sector and maritime workers, except where specific provisions – of the Maritime Act or of the Oil Sector Labour Law – apply to them or when the Labour Law is more beneficial to the workers concerned (sections 2–5 of the Law). It also notes that section 98 of the Law provides that the right of workers and employers to form organizations applies to both the public and private sectors, and that section 5(2) provides that the situation of domestic workers – including their relations with their employers – will be governed by a decision to be taken by the competent Minister. The Committee notes that the Government indicates in its report that, while the new Labour Law recognizes the right of migrant workers to join a trade union, this right needs to be prescribed by specific rules. The Committee requests the Government, in its next report: (i) to indicate whether the decision regulating labour relations of domestic workers as well as the specific rules governing the right of migrant workers to join a trade union have been adopted and to take the necessary measures to ensure that they include all the rights and guarantees set forth in the Convention; and (ii) to provide information on the way in which domestic workers, migrant workers, employees of the oil sector and maritime workers exercise, in practice, the rights enshrined in the Convention.

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and interference. The Committee notes that sections 1 and 2 of the new Labour Law provide that the Law shall apply to all workers, male and female, in the private sector. The Committee notes that pursuant to section 46 of the Law, workers shall not be dismissed on the basis of their trade union activities or as a result of claiming for or enjoyment of their legitimate rights, nor can they be dismissed by reason of sex, origin or religion. The Committee notes however that the Labour Law does not provide further protection against acts of discrimination or interference by employers or authorities. The Committee recalls that Article 1 of the Convention guarantees workers adequate protection against acts of anti-union discrimination in taking up employment and in the course of employment including at the time of termination, and covers all measures of anti-union discrimination (dismissals, transfers, demotions and any other prejudicial acts), and that general legal provisions prohibiting acts of anti-union discrimination shall be accompanied by effective and rapid procedures to ensure their application in practice. Furthermore, the Committee recalls that, legislation should explicitly prohibit all acts of interference and make express provision for rapid appeals procedures, coupled with effective and sufficiently dissuasive sanctions against such acts, in order to ensure the application in practice of Article 2 (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 214, 223 and 232). In light of the above, the Committee requests the Government to indicate, in its next report, any legislative provisions ensuring adequate protection against acts of anti-union discrimination and interference in accordance with the abovementioned principles, the penalties applicable in cases of violation, as well as the measures taken or contemplated to that effect.

Collective bargaining and compulsory arbitration. The Committee notes that sections 111–132 of the Labour Law regulate collective labour agreements and collective labour disputes. It also notes that under section 131 of the new Labour Law, the Ministry may intervene in a dispute without being asked to do so by any of the disputing parties, to bring about an amicable settlement of the dispute, and may also refer the dispute to the Conciliation Committee or the Arbitration Panel, as it deems appropriate. The Committee recalls that compulsory arbitration in the framework of collective bargaining is only acceptable if it is at the request of both parties involved, or in the case of the public service, or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. In these circumstances, the Committee requests the Government to take the necessary measures to amend sections 131 and 132 of the Labour Law, so as to ensure their full conformity with the abovementioned principles, and to provide information on any developments in this respect in its next report.

Articles 1, 2, 3, 4 and 6. Rights and guarantees of the Convention. Public sector. The Committee notes the information provided by the Government in its report detailing the provisions regulating collective labour agreements and collective labour disputes, as set forth in sections 111–132 of the Labour Law. The Committee notes that the new Labour Law applies to the private sector, but that section 98 of the Law provides that the right of workers and employers to form organizations applies to both the public and private sectors. The Committee also notes that the ITUC indicates that the private sector is extremely small and mostly composed of foreigners whose stay in the country could be compromised, and that there have been calls for the Government to remove the ban on collective bargaining in the public sector. Furthermore, the Committee notes that the Government indicates in its report, as regards collective bargaining in the public or government sector, that it responds to workers’ demands, to the extent possible, in consultation with the Government Workers’ Federation; and that some committees have recently been established in some government bodies, by virtue of ministerial orders, to discuss the demands put forward by government unions to the bodies in which they were officially recognized. The Committee understands that the current mechanisms do not provide for collective bargaining, but rather for consultation. The Committee recalls that the right to collective bargaining shall apply to all civil servants not engaged in the administration of the State, together with the other rights and guarantees provided for in the Convention (i.e. provisions ensuring adequate protection against acts of anti-union discrimination and interference and providing sufficiently dissuasive sanctions in cases of infringement). The Committee requests the Government to take measures to ensure the full application of the Convention in the public sector.

Finally, the Government is requested to provide information on any measures taken to develop and promote the widest possible use of collective bargaining in the public and private sectors.

The Committee reminds the Government that, if it so wished, it may take advantage of technical assistance from the International Labour Office.