Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report and its reply to the comments made by the International Confederation of Free Trade Unions (ICFTU) on 31 August 2005. On 10 August 2006, the ICFTU submitted additional comments on the application of the Convention. Both ICFTU communications mainly refer to legislative issues already raised by the Committee in its previous observations.

In its previous observation, the Committee had noted with interest the draft Labour Code, the provisions of which appear to resolve a number of discrepancies between the legislation and the provisions of the Convention that had been raised in its previous comments. In particular, it noted that the new draft Code appears to have eliminated the following provisions in the present Labour Code: 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 on joining a trade union for individuals under 18 years of age (section 72); the restrictions on trade union membership for non-national workers (section 72); the requirement for a certificate from the Minister of the Interior approving the founding members of a trade union (section 74); the prohibition on establishing more than one trade union per establishment, enterprise or activity (section 71); restrictions on the right to vote and to be elected to trade union office for non-nationals (section 72); the reversion of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution (section 77); 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).

In this respect, the Committee notes the Government’s statement that the new draft Labour Code for the private sector was referred to the Council of Ministers for eventual submission to the People’s Assembly (Majlis El Umma) for discussion and adoption. The Committee also notes that, although the Government indicates that a copy of the draft code is attached to its report, the said draft has not been received. The Committee requests the Government to indicate in its next report the progress made with respect to the adoption of the new Labour Code and to transmit a copy of the said Code as soon as it has been adopted.

Concerning other provisions of the draft Code upon which it had previously made comments, the Committee notes the Government’s following indications.

Domestic workers (section 5 of the draft Labour Code). The Government states that the exclusion of domestic workers from the scope of application of the Labour Code can be explained through the special characteristics of this category in Kuwait. As domestic workers are considered members of the family, it is difficult for the labour inspection department to enter private households to verify the application of the Code. The Government has nevertheless set up, by virtue of Order No. 568 of 2005, a special committee to examine the situation of domestic workers; the said committee has proposed a model contract for domestic workers and their employers, and this contract shall be distributed to all of the Government’s embassies in the countries exporting domestic workers. The Committee takes note of this information and the Government’s request for technical assistance regarding this issue. It recalls, once again, 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). In this connection, the Committee requests the Government to consider amending section 5 of the draft Labour Code, which excludes domestic workers from the provisions of the Code, or otherwise indicate the manner in which the right to establish and join organizations of their own choosing is ensured to domestic workers. With respect to the model contract for domestic workers, the Committee expresses the hope that the right to establish and join organizations is expressly provided for in the said contract; noting that a copy of the contract has not been received, the Committee requests the Government to attach a copy of it with its next report.

Restriction to one single general federation (section 101 of the draft Labour Code). The Government indicates that the restrictions concerning a single trade union system, as set out in the current legislation, have been avoided in the draft Labour Code and that the same applies to the limitation on the creation of more than one trade union confederation; this is set out in section 102. The Committee notes, nevertheless, that section 102 only allows the general federation to join Arab or international federations. Otherwise, the limitation on the establishment of general federations set out in section 101 remains. In these circumstances the Committee once again requests the Government to take appropriate measures so that the draft Code will ensure the right of workers to establish the organization of their own choosing at all levels, including the possibility of forming more than one general federation.

Minister’s excessive power to examine the financial books and records of workers’ and employers’ organizations, and global prohibition for accepting donations and legacies without approval of the ministry (section 100 of the draft Labour Code). The Government states that the extensive powers provided in Law No. 38 of 1964 were abrogated by section 101 of the draft Labour Code. In these circumstances, the Committee asks the Government to indicate whether section 100 of the draft Labour Code has been revised so as to ensure the right of workers’ and employers’ organizations to organize their administration, including their finances, without interference by the public authorities.

Overall prohibition of trade union political activities (section 100 of the draft Labour Code). The Government indicates that these restrictions have been maintained in the draft Code, due to the fact that trade unions are not political parties and must limit their role to the purposes for which they were established – namely, to protect and defend their members’ interests. With regard to this matter, the Committee once again recalls that legislation which prohibits all political activities for trade unions give rise to serious difficulties with regard to the provisions of the Convention. Some degree of flexibility in 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, op. cit. paragraph 133). The Committee again asks the Government to consider revising section 100 of the draft Code, so as to eliminate the total ban on political activities in keeping with the abovementioned principle and to inform it of the progress made in this regard.

Compulsory arbitration (sections 116-125 of the draft Labour Code). The Government indicates that, under the new draft Code, arbitration is optional for workers and not compulsory. In this respect, the Committee observes that, under section 120 of the draft Code, the Conciliation Committee may, if it is unable to settle a dispute, refer the unsettled issues to the arbitration tribunal. Furthermore, section 124 allows the competent ministry to intervene in a dispute without being asked to do so by any of the disputing parties, if need be, to bring about an amicable settlement of the dispute, and may also refer the dispute to the Conciliation Committee or the arbitration tribunal, as it deems appropriate. In light of the above, the Committee once again requests the Government to take the necessary measures to ensure that final and binding arbitration is only imposed with respect to essential services in the strict sense of the term, public servants exercising authority in the name of the State and in cases of acute national crises, or in the event that both parties agree.

Finally, the Committee regrets that the Government’s reply otherwise does not address a number of other points raised by the Committee in its 2004 observation. It therefore reiterates those hitherto unaddressed comments, and in particular asks the Government to:

­–      clarify the types of workers governed by other laws referred to in the exclusions set forth in section 5 of the draft Code;

–      provide a copy of the special laws applicable in the oil and public sectors, and to indicate the manner in which they might restrict the application of Part 5 of the draft Code to the workers in these sectors (section 94 of the draft labour Code);

–      provide information on any regulations issued by the Minister (section 95 of the draft Code) relating to the right of employers to form federations;

–      consider revising section 98 of the draft Code so that the Minister’s authority to refuse approval of the constitution of an employers’ or workers’ organization is strictly limited and to impose a time limit for the decision which, if not respected, shall give rise to the registration of the organization.

The Committee hopes that the Government will take the necessary measures to make the changes indicated above to bring the legislation into conformity with the Convention and asks the Government to transmit any legislative text adopted or envisaged in this regard.

Finally, the Committee notes that the ICFTU refers to the arrest and deportation of more than 60 Indian migrant workers who had staged a sit-in to protest poor living conditions and pay arrears. In this connection, the Committee recalls that the peaceful exercise of trade union rights by workers should not lead to arrests and deportation. The Committee requests the Government to submit its observations in relation to this comment.