Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Kuwait (RATIFICATION: 2007)

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Scope of application of the Convention. Migrant and domestic workers. In its observations concerning the application of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) in Kuwait, the Committee has noted that pursuant to section 99 of the Labour Law, the right to establish trade unions is restricted to Kuwaiti workers. Furthermore, Order No. 1 of 1964 subordinates the exercise of the right of migrant workers to join workers’ organizations to the possession of a valid work permit and a minimum of five years’ residence in the country. The Committee notes that these legal restrictions on the right to organize seriously impede the exercise by migrant workers of all rights enshrined in the Convention. Furthermore, the Committee has noted that domestic workers are excluded from the scope of the Labour Law and Law No. 68 of 2015 on Employment of Domestic Workers does not contain any provisions concerning the right to organize and collective bargaining. In its previous observation, the Committee had requested the Government to take all necessary measures to ensure the recognition of these rights for all migrant and domestic workers. It notes with regret that the Government does not indicate any measures taken in this regard, neither has it provided information on the way migrant and domestic workers exercise these rights in practice. In view of the foregoing, the Committee urges the Government to take all necessary measures, including legislative reform, to ensure the full recognition, in law and in practice, of the rights enshrined in the Convention for all migrant workers as well as for domestic workers. It also requests the Government to provide information on the way in which these workers exercise in practice the rights set out in the Convention, including information on trade union organizations established and collective agreements in force.

Articles 1 and 2 of the Convention. Adequate protection against acts of anti-union discrimination and interference. In its previous observations, the Committee had noted that beyond the general prohibition of anti-union dismissals, national legislation does not provide for effective procedures and dissuasive sanctions against acts of anti-union discrimination and interference. It had therefore urged the Government to take all the necessary measures to bring national legislation into conformity with the Convention. The Committee notes with regret that the Government does not indicate any measures taken in this regard. Therefore, it once again urges the Government to take all necessary measures to ensure that the legislation provides for the prohibition of all acts of anti-union discrimination and interference forbidden by the Convention, and to ensure that there are redress mechanisms that provide adequate protection, including effective procedures and dissuasive sanctions.

Article 4. Promotion of collective bargaining. Compulsory arbitration. In its previous observations, the Committee had noted that section 131 of the Labour Law gives the Ministry the power to intervene in a collective labour dispute without the request of any of the parties, and eventually refer the dispute to conciliation or arbitration while section 132 bans strikes during conciliation or arbitration proceedings initiated by the Ministry. The Committee had requested the Government to amend these provisions. The Committee notes that the Government indicates that in practice, it has never intervened in any dispute out of respect for the provisions of the Convention and it shall continue to do so in the future, except if the parties to a dispute request its intervention. The Committee once again recalls in this regard that compulsory arbitration in the framework of collective bargaining is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term (services whose interruption would endanger the life, personal safety or health of the whole or part of the population), and acute national crises. While noting the Government’s indication that the above-cited provisions are never applied in practice, the Committee recalls that State parties are required to ensure the conformity of their laws with the Convention. Therefore, it once again urges the Government to take all the necessary measures to amend sections 131 and 132 of the Labour Law, as well as other provisions on compulsory arbitration, to ensure their full conformity with the abovementioned principles and to provide information on any developments in this respect.

Promotion of collective bargaining. Application of the Convention in practice. In its previous observation, the Committee had requested the Government to provide information on its concrete measures to promote collective bargaining and to indicate the collective agreements concluded. The Government reports that it always encourages collective bargaining and provides the list of eleven collective agreements concluded during the 2014–20 period. The Committee notes that all these agreements concern the petroleum sector. Recalling that Article 4 of the Convention requires Governments to take measures to encourage and promote the full development and utilization of machinery for collective bargaining, the Committee requests the Government to indicate the concrete measures it has taken to promote and encourage collective bargaining in all economic sectors. It also requests the Government to continue providing information concerning the number of collective agreements concluded, specifying the sectors and the number of workers covered.

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The Committee notes the observations of the International Trade Union Confederation (ITUC) in a communication received on 18 September 2017, which refer to issues pending before this Committee together with allegations concerning the imposition of restrictions on collective bargaining in a public enterprise.

Articles 1, 2 and 6 of the Convention. Protection against acts of anti-union discrimination and interference in the public sector. In its previous comments, the Committee had requested the Government to indicate the legal provisions that protect public sector workers against acts of anti-union discrimination and interference. The Committee notes the Government’s indication that, according to section 98 of the Labour Law, public workers are covered by Chapter V of the Law on Collective Work Relations. The Committee notes however that, as already mentioned in its previous comments, the Labour Law does not provide concrete protection against acts of anti-union discrimination, such as transfers, demotions and any other prejudicial acts. Furthermore, it recalls that legislation should protect against all acts of interference, such as acts aiming to place workers’ organizations under the control of employers or employers’ organizations by financial or other means. The Committee emphasizes that legislation should make express provision for effective procedures and dissuasive sanctions to prevent and redress all acts of anti-union discrimination and to protect employers’ and workers’ organizations against interference by each other. The Committee requests the Government to take any necessary measures to ensure that the legislation provides, in respect of civil servants, for the prohibition of all acts of anti-union discrimination and interference forbidden by the Convention, as well as redress mechanisms to ensure adequate protection, including effective procedures and dissuasive sanctions, in accordance with the abovementioned principles.

Articles 4 and 6. Collective bargaining in the public sector. In its previous comments, the Committee had requested the Government to indicate the legal provisions that ensure the application of the right to bargain collectively in the public sector, especially in connection with civil service employees not involved in the administration of the State. The Committee welcomes the Government’s indication that, pursuant to sections 111–132 of the Labour Law, workers in the public sector have the right to bargain collectively. On the other hand, the Committee notes that the ITUC indicates that unions representing Kuwait’s oil workers were not consulted when a new pay scale was introduced and that the new regulations entailed cuts in oil workers’ wages and longstanding benefits. Recalling that employees of public enterprises and public servants not engaged in the administration of the State should be able to negotiate collectively their wage conditions, the Committee requests the Government to send its comments with respect to the ITUC’s observations and to provide information on the application in practice of the right to collective bargaining recognized by the Labour Law to the public sector workers.

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The Committee notes the observations of the International Trade Union Confederation (ITUC) in a communication received on 18 September 2017, which refer to issues pending before this Committee.

Scope of application of the Convention. In its previous comments, the Committee had requested the Government to provide information on the way in which domestic workers and migrant workers exercise in practice their rights enshrined in the Convention. The Committee notes the Government’s indication that, under Kuwaiti legislation, workers have the prerogative to organize, form and become members of unions. The Government refers to Ministerial Order No. 1 of 1964, which is based upon article 43 of the Constitution, and provides that no person may be compelled to join any association or union. In this respect, the Committee notes that Ministerial Order No. 1 of 1964 subordinates the exercise of this right to the possession of a valid work permit and a minimum of five years’ residence in the country. With respect to domestic workers, the Committee notes the Government’s indication that Law No. 68 of 2015 on domestic workers grants labour rights to domestic workers and aims to improve their social and economic situation. While acknowledging that Law No. 68 of 2015 constitutes a first step towards improving the protection of domestic workers, the Committee observes that this legislation does not contain any provision explicitly granting them the right to organize and negotiate collective agreements. In this respect, the Committee refers to its observations made under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee requests the Government to take all necessary measures to ensure the full recognition, in law and in practice, for all migrant workers and domestic workers of the rights enshrined in the Convention. It also requests the Government to continue providing information on the way in which domestic workers and migrant workers exercise in practice the rights set out in the Convention, including information on trade union organizations established and collective agreements in force.

Articles 1 and 2 of the Convention. Adequate protection against acts of anti-union discrimination and interference. In its previous comments, the Committee had requested the Government to take any necessary measures to ensure that legislation provides for the prohibition of all acts of anti-union discrimination and interference forbidden by the Convention as well as redress mechanisms which ensure an adequate protection. In this respect, the Committee takes note of the Government’s indication that it is forbidden for employers to terminate a contract for any reason connected to fundamental rights provided in the Constitution and international Conventions, which have determined the right of workers to join labour unions and exercise trade union rights. The Government reiterates that Kuwait’s Constitution provides in article 43 that no person may be compelled to join any association or union and that the Labour Law provides that a worker’s service may not be terminated without justification or on the grounds of union activity. The Committee recalls that, beyond these general provisions, national legislation does not provide for concrete protection against acts of discrimination. It also recalls that this protection should prohibit not only dismissals but also other measures of anti-union discrimination, such as transfers, demotions and any other prejudicial acts, as well as acts of anti-union discrimination in taking up employment. Furthermore, it recalls that legislation should provide protection against all acts of interference, such as acts aiming to place workers’ organizations under the control of employers or employers’ organizations by financial or other means. The Committee emphasizes that legislation should make express provision for effective procedures and dissuasive sanctions to prevent and redress all acts of anti-union discrimination and to protect employers’ and workers’ organizations against interference by each other. The Committee urges the Government once again to take all necessary measures to ensure that the legislation provides for the prohibition of all acts of anti-union discrimination and interference forbidden by the Convention, as well as to ensure that there are redress mechanisms which provide adequate protection, including effective procedures and dissuasive sanctions, in accordance with the abovementioned principles.

Article 4. Promotion of collective bargaining. Compulsory arbitration. The Committee had previously noted that pursuant to sections 131 and 132 of the 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 notes the Government’s indication that the aim of section 131 of the Labour Law is to grant intervention powers to the Minister in a case of a collective dispute. The Government reiterates that the exercise of this power is optional and not mandatory. It reaffirms that the Ministry has never intervened in any collective dispute and that it will be committed thereto in the future, unless the parties to the dispute request its intervention. The Committee recalls that compulsory arbitration in the framework of collective bargaining is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term (services whose interruption would endanger the life, personal safety or health of the whole or part of the population), and acute national crises. The Committee refers to its observation made under Convention No. 87, and emphasizes that even if section 131 is optional, the provision unduly affords the Ministry discretion to provide for compulsory arbitration beyond the acceptable cases previously mentioned. The Committee urges the Government once again to take all necessary measures to amend sections 131 and 132 of the Labour Law, as well as other provisions on compulsory arbitration concerned, to ensure the full conformity with the abovementioned principles, and to provide information on any developments in this respect.

Promotion of collective bargaining. Application of the Convention in practice. In its previous comments, the Committee had requested the Government to provide information concerning the number of collective agreements concluded, specifying the sectors and the number of workers covered. The Committee notes the Government’s indication that it has not been informed of any collective agreements during the period covered by its report, and that the last collective agreement was concluded in 2011. The Committee recalls that according to Article 4 of the Convention, governments shall promote collective bargaining between employers and trade union organizations, and notes with concern that no collective agreement has been concluded since 2011. The Committee therefore requests the Government to provide information on concrete measures taken or contemplated in order to encourage and promote collective bargaining. The Committee also requests the Government to continue providing information concerning the number of collective agreements concluded, specifying the sectors and the number of workers covered.

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

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The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 4 August 2011 and 31 August 2014, as well as the response from the Government to the first communication.

Scope of application of the Convention. The Committee in its previous comments had requested the Government to provide information on the way in which domestic workers, migrant workers, employees of the oil sector and maritime workers exercise the rights set out in the Convention. The Committee takes note of the information provided by the Government that the provisions of the Labour Law fully apply to employees of the oil sector and to maritime workers. The Committee requests the Government to provide additional information on the way in which domestic workers and migrant workers exercise in practice the rights enshrined in the Convention, including information on trade union organizations established and collective agreements in force.

Articles 1, 2, 3, 4 and 6 of the Convention. Rights and guarantees of the Convention in the public sector. The Committee had previously requested the Government to take measures to ensure the full application of the Convention in the public sector. The Committee notes that in its report the Government indicates that the Convention is fully applied to the public sector, as in the private sector. The Committee requests the Government to indicate in detail which legal provisions ensure the application of the right to collective bargaining in the public sector, in particular in relation to civil servants not engaged in the administration of the State, together with the other rights and guarantees provided for in the Convention (that is, provisions ensuring adequate protection against acts of anti-union discrimination and interference, and providing sufficiently dissuasive sanctions in cases of infringement).

Application of the Convention in practice. The Committee also notes that the ITUC indicates in its 4 August 2011 observations that collective bargaining is rarely practiced in the public sector. The Committee had previously requested the Government 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 notes the Government’s communication of Ministerial Order No. 211/2011, relating to the establishment and composition of a conciliation committee on collective labour disputes. The Committee requests the Government to provide additional information concerning the number of collective agreements concluded, specifying the sectors and the number of workers covered.

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The Committee notes the observations made by the International Trade Union Confederation (ITUC) in communications received on 4 August 2011 and 31 August 2014, as well as the response from the Government to the first communication.

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and interference. The Committee had requested the Government to indicate any legislative provisions ensuring adequate protection against acts of anti-union discrimination and interference, the penalties applicable in cases of violation, as well as the measures taken or contemplated to that effect. The Committee notes that the Government indicates in its report that Kuwait’s Constitution provides for the principle of equality and non-discrimination based on the grounds of race, origin, language or religion (section 29), and sets out that no one may be compelled to join any association or union (section 43); and that the Labour Act provides that a worker’s service may not be terminated without justification or on the grounds of union activity (section 46). The Committee confirms its observation that, beyond these general provisions, national legislation does not provide for further concrete protection against acts of discrimination. The Committee recalls that this protection should prohibit not only dismissals but also other measures of anti-union discrimination, such as transfers, demotions and any other prejudicial acts, as well as acts of anti-union discrimination in taking up employment. The Committee further recalls that legislation should protect against all acts of interference, such as acts aiming to place workers’ organizations under the control of employers or employers’ organizations by financial or other means. The Committee emphasizes that legislation should make express provision for effective procedures and dissuasive sanctions to prevent and redress all acts of anti-union discrimination and to protect employers’ and workers’ organizations against interference by each other. The Committee requests the Government to take any necessary measures to ensure that the legislation provides for the prohibition of all acts of anti-union discrimination and interference forbidden by the Convention, as well as redress mechanisms to ensure adequate protection, including effective procedures and dissuasive sanctions, in accordance with the abovementioned principles.

Article 4. Collective bargaining and compulsory arbitration. The Committee had noted in its previous comments that under sections 131–132 of the Labour Act, 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 in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term (services whose interruption would endanger the life, personal safety or health of the whole or part of the population), and acute national crises. The Committee had requested the Government to take the necessary measures to amend Labour Act in conformity with these principles. The Committee notes that the Government states in its report that the intervention under section 131 is an optional measure by the ministry, which has not been used so far. The Committee emphasizes that, even if optional, the provision unduly affords the ministry discretion to provide for compulsory arbitration beyond the acceptable cases previously mentioned. The Committee requests the Government to take the necessary measures to amend sections 131 and 132 of the Labour Act, as well as other provisions on compulsory arbitration concerned, to ensure their full conformity with the abovementioned principles, and to provide information on any developments in this respect.

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

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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.

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The Committee notes with satisfaction that the new Private Sector Labour Law No. 6 of 2010 was promulgated in February 2010, as indicated in the Government’s report, 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. It also notes that section 46 of the Law prohibits the dismissal of a worker for legitimate trade union activities.

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

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The Committee notes the Government’s first report on the application of the Convention. It also notes the observations made by the International Trade Union Confederation (ITUC) dated 29 August 2008 and 26 August 2009 and the replies provided by the Government concerning the 2008 communication. The Committee requests the Government to provide its comments on the matters raised by the ITUC in its 2009 communication, in particular concerning the cases of the arrest and expulsion of workers who had called a strike. The Committee also requests it to provide clarification on the following points.

Scope of application of the Convention. With regard to the observations of the ITUC according to which domestic workers, migrant workers and seafarers are excluded from the scope of the law, the Committee notes the Government’s statement that, in order to offer better protection for domestic workers, the authorities have taken decisions relating to the strengthening of the supervision of employment agencies, and the establishment of employment contracts protecting their rights and legal procedures in the case of abuses of these workers. Furthermore, with regard to migrant workers, the Government indicates that the draft new Labour Code lifts all restrictions on the exercise of their trade union rights. Noting this information, the Committee requests the Government to take advantage of the reform of the Labour Code under way to include legislative provisions specifically recognizing the right of domestic workers, migrant workers and maritime workers to exercise trade union rights, including the right to collective bargaining, and to provide a copy of any new texts adopted in this regard.

Article 4 of the Convention. Promotion of collective bargaining. Noting that, according to the ITUC, the private sector workforce accounts for only 6 per cent of the total number of workers, the Committee requests the Government to indicate the legislative provisions ensuring adequate protection against acts of anti-union discrimination and interference, the penalties applicable in cases of violation, and the provisions which guarantee the right to collective bargaining of public servants who are not engaged in the administration of the State, who should, under the Convention, benefit from the guarantees provided by the Convention. In the absence of such legislative provisions, the Committee requests the Government to take the necessary measures to introduce them into the national legislation.

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.