Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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 a communication received on 18 September 2017 referring to issues under examination by the Committee.

Article 2 of the Convention. Migrant workers. In its previous comments, the Committee had requested the Government to ensure the recognition of the right of migrant workers to establish and join organizations of their own choosing by repealing any restriction or requirement on account of work permit or time of residence. In this respect, the Committee takes note of the Government’s indication in its report that the Labour Law (2010) does not contain any section that prohibits migrant workers from establishing organizations or from joining the existing trade unions. The Committee recalls that in its previous observation, it had noted the Government’s indication that the right to establish organizations is not accorded to migrant workers due to the fact that their residence in Kuwait is temporary and ends at their contract’s expiration. As to the right to join unions, the Committee recalls that it had noted that the admission of non-Kuwaiti workers as trade union members is provided for by the Ministerial Order No. 1 of 1964, which requires them to hold a work permit and to have resided in the country for five years. In this regard, the Committee notes the Government’s indication that those requirements are merely organizational and are useful to determine if the workers concerned lawfully reside in the country and the type of occupation on the basis of which a request to join a trade union organization is made. The Committee observes that, according to the Central Statistical Bureau of Kuwait, approximately two-thirds of the population in Kuwait are non-Kuwaiti citizens. It further notes that according to statistics published on the website of the UN High Commissioner for Refugees (UNHCR), in 2010, there were at least of 93,000 Bidoons who were reportedly stateless people. The Committee recalls that the right of workers, without distinction whatsoever, to establish and join organizations of their own choosing implies that anyone residing in the territory of a State, whether or not they have a residence permit, benefits from the trade union rights provided for by the Convention, without any distinction based on nationality or the absence thereof. The Committee once again requests the Government to take all necessary measures to ensure the recognition of the right of all migrant workers to establish and join 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 development in this respect.

Domestic workers. In its previous comments, the Committee had requested the Government to take all necessary measures to ensure the full recognition of the right of domestic workers to establish and join organizations. 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. It further observes that, according to the Central Statistical Bureau of Kuwait, in 2016, 666,422 persons were employed as domestic workers (which represents around 16.5 per cent of the population). While noting 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 establish and join organizations to further and defend their interest and rights. The Committee urges the Government to take all necessary measures to ensure the full recognition and the right of domestic workers to establish and join organizations. It requests the Government to indicate all measures taken or envisaged in this regard.

Civil servants. The Committee had previously requested the Government to provide information on trade union rights in the public sector. The Committee notes the Government’s indication that civil servants have the right to establish and join unions of their own choosing and that this right is guaranteed both in law and in practice. The Government reiterates that section 98 of the Labour Law covers civil servants and that there is no legislation that restricts or limits them from exercising full trade union rights. It transmits a list of trade unions set up in various Ministries and public institutions. The Committee takes due note of this information.

Maritime and oil sector workers. The Committee had previously requested the Government to provide information on the exercise of trade union rights in the maritime and oil sector. The Government refers to a list of trade unions in the maritime and oil sector supplied with its report. The Committee takes due note of this information.

Article 3. Financial administration of organizations. In its previous comments, the Committee had requested the Government to take the necessary measures to amend sections 104(2) and (3) of the Labour Law so as to bring it into conformity with Article 3 of the Convention. The Committee notes the Government’s indication that no restriction is imposed on the financial administration of trade unions. As concerns the prohibition on trade unions to use their funds in financial, real estate and other forms of speculations imposed by section 104(2) of the Labour Law, the Government indicates that the aim of this provision is to ensure the protection of union members from the negative consequences of such investments. The Committee recalls that legislative provisions that 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 and 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 requirements for the organization to submit periodic reports. The Committee therefore once again requests the Government to take the necessary measures to amend section 104(2) of the Labour Law and to indicate all measures taken or envisaged in this respect. In respect of section 104(3) of the Labour Law, the Committee takes due note of the Government’s indication that this provision does not restrict trade unions from receiving money (donations and successions), but simply directs trade unions to inform the Ministry of the donations and successions received in order to verify the legitimacy of the source. The Committee understands that section 104(3) of the Labour Law does not indeed require the Ministry’s consent.

Overall prohibition on trade union political activities. In its previous comments, the Committee had requested the Government to take the necessary measures to revise section 104(1) of the Labour Law which prohibits trade unions from involvement in any political matters. The Government indicates that the involvement of trade unions in political issues is not one of the objectives for which trade unions are established. The Government reiterates that the trade unions’ aim is to defend the interest of workers and to improve their economic and social situation, while the objective of any political party is to fight for a policy. The Government also indicates that unions can always express their views on political issues of interest to their members without any interference. The Committee recalls that the development of the trade union movement and the increasing recognition of its role as a social partner in its own right means that workers’ organizations must be able to voice their opinions on political issues in the broad sense of the term and, in particular, to express their views publicly on a government’s economic and social policy. The Committee once again requests the Government to take the necessary measures to amend section 104(1) of the Labour Law so as to eliminate the total ban on political activities in keeping with the abovementioned principle and so as to explicitly ensure that union members are able to express their views on policy matters that may affect their interest. It further requests the Government to indicate all progress made in this regard.

Compulsory arbitration. The Committee had previously noted that the intervention by the Ministry in labour disputes pursuant to sections 131 and 132 of the Labour Law could lead to compulsory arbitration and the prohibition of strikes. Noting the willingness of the Government to examine these provisions in consultation with the social partners, the Committee had requested the Government to provide information on the results of such tripartite consultations. 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 points out 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 is committed to not intervening, unless the parties to the dispute request its intervention. The Committee once again recalls that in as much as compulsory arbitration prevents strike action (section 132 of the Labour Law), 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. The Committee therefore once again 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.

Dismissal of executive boards. In its previous comments, the Committee had noted that section 108 of the Labour Law provides for the possibility to dismiss an organization’s board of directors by court order in case the board engages in an activity that either violates the provisions of the Labour Law or of the “laws relevant to the preservation of public order and morals”. The Committee also had pointed 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. Furthermore, the Committee had considered 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 notes that no information has been provided by the Government in this respect. It therefore once again requests the Government to take the necessary measures to amend section 108 of the Labour Law and to indicate all progress made in this respect.

Article 5. Limitation to a single confederation. In its previous comments, the Committee had requested the Government to take the appropriate measures to amend section 106 of the Labour Law, which provides that “there should not be more than one general union for each of the workers and employers”, so as to ensure the right of workers and employers to establish organizations of their own choosing at all levels. The Committee notes that the Government did not provide any information on the measures to amend section 106 of the Labour Law. Once again, the Committee recalls that the right of workers to be able to establish organizations of their own choosing, as set out in Article 2 of the Convention, implies that trade union diversity must remain possible in all cases. The Committee considers that it is important for workers to be able to change trade unions or to establish a new union for reasons of independence, effectiveness or ideological choice. Consequently, legislation which requires trade unions to be grouped together in a single federation or confederation raises problems of compatibility with the Convention. The Committee notes with regret the lack of progress in this regard and recalls that a legislatively imposed trade union monopoly at any level is incompatible with the requirements of the Convention. The Committee 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 organizations of their own choosing at all levels, including the possibility of forming more than one confederation (general union), and to provide information on any developments in this respect.

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