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

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

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.