Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Kuwait (Ratification: 1961)

The Committee takes note of the Government’s report as well as the statement of the Government representative to the Conference Committee in 2000 and the discussion that followed.

The Committee recalls that it has commented for several years on the need to repeal or amend the following provisions of the Labour Code (Act No. 38 of 1964), which are contrary to the Convention.

Article 2 of the Convention

-  The exclusion from the scope of the Code, and thus from the protection afforded by the Convention, of domestic workers (section 2 of the Code as modified in 1956).

-  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 to join a trade union for individuals of under 18 years of age (section 72).

-  The requirement of five years’ residence in Kuwait for non-national workers before they may join a trade union, and the requirement that a certificate of moral standing and good conduct delivered by the competent authority be obtained in order to join a trade union (section 72).

-  The requirement that a certificate be obtained from the Minister of the Interior stating that he has no objection to any of the founding members, before a trade union may be established, and the requirement that at least 15 members must be Kuwaiti in order to found a trade union (section 74).

-  The prohibition to establish more than one trade union per establishment, enterprise or activity (section 71).

Articles 5 and 6

-  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 prohibition for organizations and their federations to establish more than one general confederation (section 80).

-  The single trade union system established under sections 71, 79 and 80, read together.

Article 3

-  The ban on the right to vote and to be elected for unionized workers not of Kuwaiti nationality, except to elect a representative having the right only to voice their opinions with the Kuwaiti union officers (section 72).

-  The prohibition on trade unions from engaging in any political or religious activity (section 73).

-  The wide powers of supervision of the authorities over trade union books and registers (section 76).

-  The reversion of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution (section 77).

The Committee takes note of the Government’s reference to a draft law to modify the Labour Code (Act No. 38 of 1964). The Government states that the draft law has been upgraded and would incorporate the comments made by the Committee. In particular, the Government indicates that with respect to the exclusion from the scope of the Labour Code of 1964 of specific categories of workers, sections 97 and 98 of the new draft Labour Code would eliminate these restrictions. Furthermore, sections 103, 106 and 110 of the said draft would ensure conformity with the provisions of the Convention with respect to the following points:

-  the requirement of a certificate of good conduct from the Ministry of the Interior by the founding member of a union;

-  the reversion of a trade union’s assets to the Ministry of Social Affairs upon dissolution;

-  the impossibility of an administrative dissolution.

The Government also indicates that section 99 of the new draft Labour Code would set down the procedure for the establishment of workers’ and employers’ organizations. The Committee observes that draft section 99 provides that the meeting of a number of workers or a few employers, constituted in a general assembly, would be in charge of adopting founding statutes guided by the standard statutes promulgated by a ministerial decision. In this regard, the Committee considers that any legislative or administrative provisions concerning the preparation, content, amendment, acceptance or approval of constitutions and rules of workers’ or employers’ organizations which go beyond formal requirements may hinder the establishment and development of organizations and constitute interference of the public authorities in trade union affairs, contrary to Article 3(2) of the Convention (see General Survey on freedom of association and collective bargaining, 1994, paragraph 111), and requests the Government to transmit, in its next report, the ministerial decision containing said standard statutes, in order to examine their compatibility with the Convention.

Thus, noting that there are still discrepancies between the draft law and the Convention, the Committee hopes that said draft law, with the necessary amendments, will rapidly be adopted and promulgated. It again urges the Government to take the necessary measures in the near future to ensure that the legislation on which it has been commenting for several years is brought into conformity with the requirements of the Convention.

[The Government is asked to report in detail in 2001.]