Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations made by the International Trade Union Confederation (ITUC) in communications received on 4 August 2011 and 1 September 2014, many of which concern issues dealt with by the Committee, as well as the response from the Government to the first communication. The Committee also takes note of the observations provided by the International Organisation of Employers (IOE) in a communication received on 1 September 2014.

Article 2 of the Convention. Migrant workers. In its previous observation, the Committee requested the Government to take the necessary measures to ensure full conformity of the legislation with the right of migrant workers to establish and join organizations of their own choosing, and to provide a copy of the order to be issued by the minister on the admission of non-Kuwaiti workers as trade union members.

Regarding the right to establish organizations, the Government notes in its report that it is the only trade union right not accorded to migrant workers, due to the fact that their residence in Kuwait is temporary and ends at their contracts’ expiration. The Committee recalls that the right to establish organizations is guaranteed under Article 2 of the Convention to all workers without distinction whatsoever, and that the temporal nature of residency of migrant workers does not justify depriving them of this right.

As to the right to join unions, the Government states in its report that the admission of non-Kuwaiti workers as trade union members is provided for by Ministerial Order No. 1 of 1964, which requires them to hold a work permit and to have resided in Kuwait for five years. The Committee observes that the legal imposition of these restrictions is not compatible with Article 2 of the Convention, as the right of workers, without distinction whatsoever, to establish and join organizations implies that all workers residing in the territory of a State, whether or not they have a work permit and regardless of years of residency, benefit from the trade union rights provided for by the Convention.

The Committee requests the Government to take any necessary measures to ensure the recognition of the right of migrant workers to join and establish organizations of their own choosing, repealing any restriction or requirement on account of work permit status or time of residence, and to provide information on any developments in this respect.

Domestic workers. In its previous observation, noting that section 5(2) of Private Sector Labour Law No. 6 of 2010 (Labour Act) provides that the situation of domestic workers will be governed by a decision to be taken by the competent minister, the Committee had hoped that an order regulating labour relations of domestic workers would be adopted in the near future and guarantee the rights of domestic workers to establish and join organizations. The Government reports that no decision or law allowing domestic workers to establish or join occupational organizations, has been promulgated. The Committee observes in this regard that the new law adopted in June 2015 on the rights of domestic workers does not provide for their right to organize. Regretting the lack of progress in this regard and hoping that it will be able to note progress in the near future, the Committee requests the Government to adopt any necessary measure to ensure the full recognition of the right of domestic workers to establish and join organizations. The Committee requests the Government to provide information on developments in this respect.

Other categories of workers. In its previous observation, the Committee requested the Government to indicate: (i) the manner in which the right to establish and join organizations of their own choosing is ensured to civil servants; and (ii) whether the Maritime Act and the law governing the oil sector include provisions on trade union rights. The Government indicates that the Maritime Act and the law governing the oil sector do not contain any provisions on trade union rights and that, therefore, the provisions of the Labour Act apply and fully guarantee trade union rights in these sectors. The Government indicates that there is no specific legislation on the rights of civil servants to establish or join unions, and that section 98 of the Labour Act, which recognizes the right to organize and establish unions, also covers civil servants, provided that there is no conflict with the laws which regulate their affairs. The Committee requests the Government to indicate how the right to establish and join unions of their own choosing is fully guaranteed for civil servants in practice, as well as whether any legislation applicable to civil servants limits or restricts their exercise of this right, and to provide a copy of the relevant legislation. The Committee further requests the Government to provide additional information on the exercise of trade union rights in practice in the maritime, oil and public sectors, including the number of unions established and the membership in each union.

Article 3. Financial administration of organizations. The Committee had previously requested the Government to take the necessary measures to amend section 104(2) of the Labour Act, which prohibits trade unions from using their funds in financial speculation, real estate or other forms of speculation. The Government notes in response that there are no restrictions imposed on the financial administration of organizations and that the prohibition on financial speculation is set out to avoid the risks involved and to prevent loss of union funds. The Committee further observes that section 104(3) of the Labour Act unduly subjects the acceptance of gifts and donations by unions to the approval of the ministry. The Committee recalls that legislative provisions that subject the acceptance of gifts and donations to prior authorization by the public authorities, or restrict the freedom of trade unions to administer, utilize and invest their funds as they wish for normal and lawful trade union purposes, including through financial or real estate investments, are incompatible with Article 3 of the Convention, 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 regrets the lack of progress in this respect and again requests the Government to take the necessary measures to amend section 104(2) and 104(3) of the Labour Act in accordance with the abovementioned principle.

Overall prohibition on trade union political activities. In its previous observation, the Committee had requested the Government to take the necessary measures to revise section 104(1) of the Labour Act, which prohibits trade unions from involvement in any political matters. The Committee notes the Government’s response stating that political union activities are in conflict with the union’s main objective to defend the interests of workers and improve their financial, social and economic situation. The Committee once again recalls that legislation which prohibits all political activities for trade unions is not in conformity with the Convention, and that trade unions should be able to express their views on matters of economic and social policy affecting their members and workers in general. The Committee notes with regret the lack of progress in this respect and requests the Government to take the necessary measures to revise section 104(1) of the Labour Act, so as to eliminate the total ban on political activities in keeping with the abovementioned principle, and to indicate developments in this regard.

Compulsory arbitration. The Committee had noted in its previous observation that the intervention by the ministry in labour disputes pursuant to sections 131 and 132 of the Labour Act could lead to compulsory arbitration and the prohibition of strikes. The Committee notes the Government’s statement in its report that the aim of sections 131 and 132 was to avoid any interference by the ministry unless needed, and that the ministry has not thus far intervened pursuant to these sections. The Committee also notes that the Government welcomes in its report the Committee’s previous comments and declares that it will examine them in collaboration with the social partners. The Committee requests the Government to provide information on the results of this tripartite examination, in particular as to the need to amend sections 131 and 132 of the Labour Act, and hopes that it will be able to observe progress in this respect in the near future.

Dismissal of executive boards. Section 108 of the Labour Act provides for the possibility to dismiss an organization’s board of directors by court order in case it engages in an activity that either violates the provisions of the Labour Act or of the “laws relevant to the preservation of public order and morals”. The Committee points out that the reference, as grounds for board dismissal, to any activity that violates the laws relevant to the preservation of the public order and morals is too broad and vague, and could lead to an application that hinders the exercise of the trade union rights enshrined in the Convention. The Committee considers that the dismissal of the executive boards of employers’ or workers’ organizations by court order should be restricted to serious and repeated violations of the organizations’ constitutions or of relevant legislation, and recalls that legislation cannot impair nor be applied to impair the guarantees provided for in the Convention. The Committee requests the Government to take measures to amend section 108 of the Labour Act to ensure the respect of the abovementioned principle.

Article 5. Limitation to a single confederation. In its previous observation, the Committee once again requested the Government to take the appropriate measures to amend section 106 of the Labour Act, which provides that “there shall not be more than one general union for each of the workers and the employers”, so as to ensure the right of employers and workers to establish organizations of their own choosing at all levels, including the possibility of forming more than one general confederation. The Committee notes the Government’s reply that the restriction only concerns the establishment of a single confederation, in accordance with the state’s policies to unify unions’ efforts and prevent their dissipation. The Committee notes with regret the lack of progress in this regard, recalls that a legislatively imposed trade union monopoly at any level is incompatible with the requirements of the Convention, and requests the Government to take the appropriate measures to amend section 106 of the Labour Act, 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.

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