Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

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. It notes in particular the Government’s indication that it is making diligent efforts towards the adoption of the new draft Labour Code of the Private Sector, through the setting up of a tripartite committee by virtue of Ministerial Order No. 168/2003 responsible for reviewing the draft Code and following up on its procedures for promulgation.

The Government reports that it has requested the technical assistance of the Office in reviewing the conformity of the provisions of the draft Code with international labour standards, so that it could take these comments into account prior to the Code’s adoption. The Government adds that it has taken into account the previous comments made by the Committee of Experts in the drafting of the Labour Code, so as to bring the text into conformity with the provisions of ratified Conventions. The sections that are in conflict with the provisions of Conventions were imposed by the special conditions arising out of the terrorist attacks that are currently afflicting the world. The Government will transmit a copy of the Code as soon as it is adopted.

The Committee notes with interest the provisions of the draft Labour Code, which would appear to resolve numerous discrepancies between the legislation and the provisions of the Convention that had been raised in its previous comments. In particular, the Committee notes 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).

The Committee notes, however, that there remain in the draft Labour Code some provisions upon which it had previously made comments in respect of the following provisions of the Convention.

Article 2 of the Convention. The Committee notes that section 5 of the draft Labour Code maintains the exclusion of domestic workers from the scope of its application and further excludes more generally workers governed by other laws, as provided in the said laws. The Committee recalls that this Article of the Convention provides that all workers, without distinction whatsoever, shall have the right to establish and join organizations of their own choosing and the only possible exception in this regard concerns the police and the armed forces, as stipulated in Article 9. The Committee therefore requests the Government to indicate the manner in which this right is ensured to domestic workers and to clarify the types of workers governed by other laws referred to in the exclusion in section 5.

The Committee further notes that section 94 provides that Part 5 of the draft Code concerning workers’ and employers’ organizations and the right to organize shall apply to the oil and public sectors to the extent that the provisions are not inconsistent with the applicable laws thereto. The Committee requests the Government to provide a copy of the special laws applicable in the oil sector and in the public sector and to indicate the manner in which they might restrict the application of Part 5 to the workers in these sectors.

The Committee notes that section 95 of the draft Code provides that employers shall have the right to form federations, according to the terms and conditions issued by the Minister. The Committee trusts that any such terms and conditions do not restrict the right of employers to form organizations and federations of their own choosing and requests the Government to keep it informed of any regulations issued by the Minister in this regard.

The Committee also notes that section 98 of the draft Code provides generally for the legal personality of a workers’ or employers’ organization upon the decision of the Minister approving the constitution thereof. The Committee recalls that legislation that does not clearly define the procedures of the formalities which must be observed or the reasons which the competent authority may give for refusal or that confers on the competent authority a genuinely discretionary power to grant or withhold approval required for the establishment and functioning of an organization, may be tantamount to requiring previous authorization, contrary to this Article of the Convention. The Committee therefore requests the Government to consider revising this draft provision so that the Minister’s authority to refuse approval of a constitution 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.

Finally, the Committee notes that, while having apparently eliminated the elements of trade union monopoly at enterprise and sectoral level, section 101 of the draft Code maintains the restriction to one single general federation. The Committee requests the Government to take the necessary 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 for more than one general federation.

Article 3. The Committee notes that section 100 of the draft Code grants the Minister excessive power to examine the financial books and records of workers’ and employers’ organizations and provides a global prohibition for engagement in political activities and for accepting donations and legacies without approval of the Ministry. The Committee recalls that the right of workers’ and employers’ organizations to organize their administration without interference by the public authorities includes in particular autonomy and financial independence and the protection of the assets and property of these organizations. The Committee considers that there is no infringement of the right of organizations to organize their administration if, for example, the supervision is limited to the obligation of submitting periodic financial reports or if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should not infringe the principles of freedom of association); similarly, there is no violation of the Convention if such verification is limited to exceptional cases, for example in order to investigate a complaint, or if there have been allegations of embezzlement. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 124 and 125).

The Committee considers that the powers vested in the Minister by virtue of section 100 of the draft Code, both in terms of the unrestricted access to organizations’ books and records and as regards the requirement that donations and legacies receive prior approval, go beyond the limits set forth in the paragraph above and requests the Government to consider revising this section accordingly.

As regards the overall prohibition of political activities, the Committee recalls that legislation which prohibits all political activities for trade unions gives 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 therefore requests 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 above mentioned principle.

The Committee further notes that sections 116-125 of the draft Code set up a system of compulsory arbitration contrary to the right of workers’ organizations to organize their activities and formulate their programmes free from government interference. The Committee therefore 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.

The Committee trusts that the Government will take the necessary measures in the near future to bring the provisions of the draft Labour Code into conformity with the points raised above and that the Code will be adopted shortly so as to ensure greater conformity with the provisions of the Convention. It requests the Government to indicate, in its next report, the progress made in this regard and to transmit a copy of the Labour Code as soon as it has been adopted.