Observation (CEACR) - adoptée 2010, publiée 100ème session 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 that the Labour Law governing the private sector was promulgated in February 2010 (Law 6/2010) 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. The Committee notes with satisfaction that the new Labour Law resolves a number of discrepancies between the legislation and the Convention and in particular, that it eliminates the following provisions of the former Law: 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 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); the reversion of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution (section 77); and 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 Committee also takes note of the report of the ILO’s technical assistance mission to Kuwait held on 6–11 February 2010.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. Domestic workers. In its previous observation, the Committee had requested the Government to amend the draft Labour Law, which excluded domestic workers from the Law’s provisions, or otherwise indicate the manner in which the right of domestic workers to establish and join organizations of their own choosing is ensured. It also requested the Government to provide a copy of the model contract it had promulgated for domestic workers and their employers by virtue of Order No. 568 of 2005. The Committee notes that the Government indicated the difficulty in extending the Labour Law’s provisions to domestic workers since, as domestic workers are considered members of the family, it is hard for the labour inspection department to enter private households to verify the application of the Law. The Committee notes that section 5(2) of the new Labour Law provides that the situation of domestic workers will be governed by a decision to be taken by the competent minister, which will set up the rules governing the relationship between domestic workers and their employers. The Government adds, in its report, that the labour contract further regulates the process of receiving and employing domestic workers. The Committee also notes that the report of the ILO’s technical assistance mission indicates in this regard that examples were provided during the mission of how certain countries monitor the national legislation, taking into account the difficulty of labour inspectors to enter private households. 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). The Committee hopes that the order regulating labour relations of domestic workers will be adopted in the near future and that it will guarantee the rights of domestic workers in accordance with the abovementioned principle. The Committee requests the Government to provide information on any development in this respect in its next report.

Other categories of workers. In its previous observation, the Committee had asked the Government to clarify the types of workers governed by other laws referred to in the exclusions set forth in the draft Labour Law. The Government stated in this regard that the workers covered by other laws were government employees, seafarers and employees in the oil sector. 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 (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. The Committee requests the Government, to indicate in its next report: (i) the manner in which the right to establish and join organizations of their own choosing is ensured to civil servants, and to provide a copy of the relevant legislation; and (ii) whether the Maritime Act and the law governing the oil sector include provisions on trade union rights.

As regards migrant workers, the Committee had noted that the draft new Labour Law appeared to have eliminated the restrictions on trade union membership for non-national workers, including restrictions on the right to vote and to be elected to trade union office (former section 72). The Committee notes that section 99 limits to Kuwaiti workers the right to establish a trade union organization. The Committee also notes that the Government indicates in its report that the new Labour Law has repealed the minimum requirement of five years for a migrant worker to join a trade union, and adds that the admission of non-Kuwaiti workers as trade union members needs to be prescribed by specific rules and conditions; that this has been left to an Order to be issued by the competent minister, in view of the large number of new migrant workers, the speed at which they move about and their lack of stability; and that the admission of new migrant workers as members of trade unions will be based on the verification that they are stable in their living conditions in the country. Welcoming the change made by the new Labour Law as to the right of migrant workers to join trade unions and recalling that all workers, including migrant workers, shall have the right to establish and join organizations of their own choosing, without distinction whatsoever, in accordance with the Convention, the Committee requests the Government to take the necessary measures to ensure full conformity of the legislation with the Convention and to provide, in its next report a copy of the Order to be issued by the minister on the admission of non-Kuwaiti workers as trade union members.

Article 3. Financial administration of organizations. The Committee had previously requested the Government to revise section 100 of the draft Labour Law so as to ensure the right of workers’ and employers’ organizations to organize their administration, including their finances, without interference by the public authorities. The Committee had noted with interest the Government’s indication that this provision had been annulled. While noting that the Government indicates in its report that government supervision is not limited to advice and follow-up as regards the manner in which trade unions keep their administrative and financial records, as well as guidance in order to correct any defects in the data and entries contained therein (section 104 of the Labour Law), the Committee notes that under section 104(2) of the new Labour Law, trade unions are explicitly prohibited from using their funds in financial speculation, real estate or other forms of speculation. The Committee recalls that legislative provisions that give authorities the right to restrict the freedom of trade unions to invest, administer and utilize their funds as they wish for normal and lawful trade union purposes are incompatible with the principles of freedom of association and that the control exercised by public authorities over trade union finances should not go beyond the requirement for the organizations to submit periodic reports. The Committee requests the Government to take the necessary measures to amend section 104(2) of the Labour Law in accordance with the abovementioned principle.

Overall prohibition on trade union political activities. In its previous observation, the Committee had requested the Government to consider revising the draft Labour Law so as to eliminate the total ban on the political activities of workers’ and employers’ organizations. The Committee notes that section 104(1) of the new Labour Law maintains the prohibition for trade unions to be involved in any political matters. The Committee notes that the Government adds in its report that the prohibition of engaging in political activities is maintained since the main objective of founding a trade union is to defend workers’ interests and not to engage in matters which are not to be included in the Labour Law. In these circumstances, the Committee once again recalls that legislation which prohibits all political activities for trade unions gives rise to serious difficulties with regard to the application 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 requests the Government to take the necessary measures to revise section 104(1) of the Labour Code, so as to eliminate the total ban on political activities in keeping with the abovementioned principle, and to indicate any progress made in this regard in its next report.

Compulsory arbitration. The Committee notes that under section 131 of the new Labour Law, the ministry may intervene in a collective dispute without being asked to do so by any of the disputing parties to settle the dispute amicably and may also refer the dispute to the Reconciliation Committee or the Arbitration Board, as it deems appropriate. The Committee further notes that section 132 prohibits the parties to the dispute to stop the work, totally or partially while direct negotiations are ongoing or if the ministry has referred the dispute to the Reconciliation Committee or the Arbitration Board. The Committee understands accordingly that the intervention by the Ministry in a labour dispute may lead to an arbitration procedure being mandatory and to work stoppages being prohibited, i.e. strikes. The Committee recalls that in as far as compulsory arbitration prevents strike action, it is contrary to the right of trade unions to freely organize their activities. Compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State 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 131–132 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.

Article 5. Right of workers’ and employers’ organizations to establish federations and confederations. Restriction to a single federation. In its previous observation, the Committee requested the Government to amend the draft Labour Code, which limited trade unions to the establishment of a single general federation. In view of section 106 of the new Labour Law, the Committee understands that this provision has not been removed. The Committee further notes that the Government indicates in its report that if trade union pluralism is required and applied at the grass-roots, occupational and sectoral levels, trade union unity needs to be applied at the level of the federation and that it is neither in the national interest, nor in the workers’ interest to give up this important achievement. The Committee recalls that although the Convention clearly does not aim to make trade union pluralism compulsory, pluralism must be possible in every case, even if trade union unity was once adopted by the trade union movement (see General Survey, op. cit., paragraphs 96 and 107). The Committee therefore once again requests the Government to take the appropriate measures to amend section 106 of the Labour Law, so as to ensure the right of workers to establish the organization of their own choosing at all levels, including the possibility of forming more than one confederation, and to provide information on any developments in this respect in its next report.

The Committee is raising other points in a request addressed directly to the Government.