Observation (CEACR) - adoptée 1995, publiée 83ème session CIT (1996)

The Committee notes the Government's report and the discussion which took place once again in the Conference Committee in 1995.

The Committee recalls that for several years it has been drawing attention to a number of discrepancies between the Labour Code (Act No. 38 of 1964) and the Convention, in particular:

(1) the prohibition on establishing more than one trade union for a given establishment or activity and the membership requirement of at least 100 workers in order to establish a trade union (section 71 of the Act) and ten employers to form an association (section 86);

- 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);

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

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

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

(4) 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 before a union may be established (section 74);

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

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

(7) the restriction on the free exercise of the right to strike (section 88);

(8) the exclusion from the scope of the Code of employees of the State and 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) which results in denial of the right to organize of these categories of workers.

In a previous observation, the Committee noted that a draft labour code repealing several provisions contrary to the Convention (sections 71, 72, 73, 74 and 79) was being prepared and was to be submitted to the competent authority. A Government representative had even declared to the Conference in 1992 that his Government was going to endeavour to submit full information on the application of the Convention, including the revision of the Labour Code of 1964, which was one of the priorities of the competent authority, in order to reorganize the society of the country.

The Committee, like the Committee on the Application of Standards of the Conference in June 1995, notes the assurances given by a Government representative concerning respect for human rights and the determination to guarantee workers' rights. It observes with concern that no measure has been taken to reduce the considerable gap between domestic legislation and the guarantees provided by the Convention, particularly in regard to the right to association of foreign workers. The Committee urges once again the Government to ensure that domestic legislation should give all workers and employers, without distinction whatsoever, whether they are nationals or foreigners, public servants, domestic workers or seafarers, the right to join occupational organizations of their choice to defend their interests, including for workers, by striking, and for workers' and employers' organizations the right to join federations or confederations, to elect their representatives freely and to organize their management without interference from the public authorities in accordance with Articles 2, 3, 5 and 6 of the Convention.

The Committee recalls that ILO technical assistance is available for the drafting of legislation in conformity with the requirements of the Convention and requests the Government to communicate in its next report information on any progress made in the application of this Convention.

[The Government is asked to supply full particulars to the Conference at its 83rd Session.)]