Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Koweït (Ratification: 1961)

The Committee notes the Government’s report and its reply to the comments made by the International Trade Union Confederation (ITUC) on 10 August 2006. On 29 August 2008, the ITUC submitted additional comments on the application of the Convention. Both ITUC communications mainly refer to legislative issues already raised by the Committee in its previous observations.

The Committee had previously noted with interest the draft Labour Code, the provisions of which appear to resolve a number of discrepancies between the legislation and the provisions of the Convention that had been raised in its previous comments. In particular, it noted 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 had also commented upon a number of other provisions of the draft Labour Code and requested the Government to report the progress made with respect to the draft Code’s adoption. The Committee notes the Government’s indication that a number of revisions have been made to the draft Labour Code, and that it was still before the People’s Assembly (Majlis El Umma) for discussion and adoption. In these circumstances, the Committee expresses the hope that the Government will take the necessary measures to amend the draft Labour Code, in accordance with its comments below, and requests the Government to provide a copy of the final version of the draft Labour Code with its next report.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. Domestic workers (section 5 of the draft Labour Code). Previously, the Committee had requested the Government to amend section 5 of the draft Labour Code, which excludes domestic workers from the Code’s provisions, or otherwise indicate the manner in which the right of domestic workers to establish and join organizations of their own choosing is ensured. It also requested the Government to provide a copy of the model contract it had promulgated for domestic workers and their employers. In this regard, the Committee notes that the Government requests assistance with regard to the difficulty in extending the draft Labour Code’s provisions to domestic workers since, as domestic workers are considered members of the family, it is difficult for the labour inspection department to enter private households to verify the application of the Code. In these circumstances, the Committee expects that the assistance requested will be provided by the Office in the very near future so as to guarantee domestic workers the right to establish and join occupational organizations. The Committee further requests the Government to indicate the legislation which governs labour relations of domestic workers.

Other categories of worker (section 5 of the draft Labour Code). Previously, the Committee had asked the Government to clarify the types of workers governed by other laws referred to in the exclusions set forth in section 5 of the draft Code. The Government states in this regard that the workers covered by other laws are government employees, seafarers and employees in the oil sector. The Committee requests the Government to indicate the manner in which the right to establish and join organizations of their own choosing is ensured to the abovementioned categories of workers and to provide copies of the legislation applicable to them – including the law governing the oil sector and the Civil Service Act.

Article 3. Minister’s excessive power to examine the financial books and records of workers’ and employers’ organizations, and the global prohibition on accepting donations and legacies without approval of the ministry (section 100 of the draft Labour Code). The Committee had previously requested the Government to indicate whether section 100 of the draft Labour Code had been revised so as to ensure the right of workers’ and employers’ organizations to organize their administration, including their finances, without interference by the public authorities. In respect of this matter, the Committee notes with interest the Government’s indication that this provision has been annulled.

Overall prohibition on trade union political activities (section 100 of the draft Labour Code). Previously, the Committee had requested the Government to consider revising section 100 of the draft Code so as to eliminate the total ban on the political activities of workers’ and employers’ organizations, and to indicate the progress made in this regard. The Committee notes that the Government reiterates that the ban on political activities has been maintained, as such activities lie outside the purview of trade unions; the said prohibition is set out in
subsection (1) of the new section 101 of the draft Labour Code. In these circumstances, the Committee once again recalls that legislation which prohibits all political activities for trade unions give 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 of 1994 on freedom of association and collective bargaining, paragraph 133). The Committee requests the Government to consider revising section 101 (formerly section 100) of the draft Code, so as to eliminate the total ban on political activities in keeping with the abovementioned principle, and to indicate any progress made in this regard.

Compulsory arbitration (sections 120 and 124 of the draft Labour Code). The Committee had previously noted that under section 120 of the draft Code the Conciliation Committee may, if it is unable to settle a dispute, refer the unsettled issues to the arbitration tribunal. The Committee had also noted that section 124 – now section 125, according to the Government – allows the competent ministry to intervene in a dispute without being asked to do so by any of the disputing parties, if need be, to bring about an amicable settlement of the dispute, and may also refer the dispute to the Conciliation Committee or the arbitration tribunal, as it deems appropriate.

The Committee notes the Government’s request for clarification of its previous comment concerning these sections. In this respect, the Committee recalls that, in as far as, compulsory arbitration prevents strike action, 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. In these circumstances, the Committee once again requests the Government to amend sections 120 and 124 of the draft Labour Code, so as to ensure their full conformity with the principles mentioned above.

Article 5. Right of workers’ and employers’ organizations to establish federations and confederations. Right of employers to form federations
(section 95 of the draft Labour Code). The Committee had previously noted that section 95 – now section 96, according to the Government – provides that employers shall have the right to form federations, according to the terms and conditions issued by the Minister, and requested the Government to provide information on any regulations issued by the Minister in this regard. The Committee notes the Government’s indication that no regulations have been promulgated under it.

Restriction to one single federation (section 101 of the draft Labour Code). In its previous comment, the Committee requested the Government to amend section 101 of the draft Labour Code, which limits trade unions to the establishment of a single general federation. In this connection, the Committee notes with interest the Government’s statement that this provision has been annulled. Nevertheless, the Committee further notes the Government’s indication that section 102 has been amended to read as follows: “Trade unions which are proclaimed in accordance with the provisions of this chapter shall establish federations which defend their common interests. Proclaimed federations set up in accordance with the provisions of this chapter shall constitute a Confederation. The federations and the Confederation which are set up shall follow the same procedures as set out in the establishment of trade unions.” The Committee observes that section 102, as amended, would appear to permit first-tier trade union and federation multiplicity but limits federations to the formation of a single confederation. In these circumstances, the Committee requests the Government to take the appropriate measures to amend section 102 of the draft Labour Code, 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.