Individual Case (CAS) - Discussion: 1992, Publication: 79th ILC session (1992)

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

A Government representative referred to the reasons why the Government had not been able to implement the Convention, and stated that the Government had started, on its return home last year, to look into the observations of the Committee of Experts. Kuwait had set up a committee in order to carry out a final study on the possibility of drawing up a draft Labour Code, in consultation with the General Federation of Kuwaiti Workers and the Chambers of Commerce and Industry, taking also into account the observations of the Committee of Experts. This committee had finished studying the draft Code which was being submitted to the legislative authorities. Labour relations had gone beyond Act No. 38 of 1964; workers had been able to enjoy their rights through bilateral negotiations and collective agreements which had been authenticated by the Ministry of Labour and Social Affairs, and had become a referral point for courts. Under section 13 of the Act, workers and employers have the right to organise. Another element clarified by this Act was the role of these organisations. The law recognises the right of workers to freedom of association and the right to organise, and therefore made trade unions legitimate and legal from the point of view of the law. The speaker emphasised that Kuwait had made great strides in developing labour relations and the trade union movement, as well as the protection of workers' rights and the improvement of conditions of work, in accordance with provisions of the Convention. The Ministry of Labour and Social Affairs no longer had wide powers of supervision. The Ministry was confined to give assistance that trade unions might require from the Government. The Ministry also had the right to control any activity which may be contrary to national law. As to the eligibility of non-Kuwaiti workers to hold trade union office, the text of the Act does not expressly prohibit them from being elected or from holding trade union office in accordance with Chapter 3, section 72. Concerning the system of a single trade union, in order to protect the rights of workers the Government had enabled workers to set up more than one trade union. In relation to workers' grievances, the settlement of labour disputes and the imposition of arbitration, he indicated that Act No. 38 provided that workers' complaints might be settled on a bilateral basis. The trade union is authorised to act on behalf of workers in accordance with this Act, but the Act is not applicable to employers' complaints against workers. The decisions of the arbitration body are final and binding. Since labour disputes are delicate and sensitive issues which require rapid resolution, they are dealt with by a subsidiary body of the court of appeals, referred to in section 88 of the Act, following fair and just procedures, in accordance with the Convention.

The Workers' members stated that this case had been discussed in the Conference Committee in 1981, 1982 and 1983. The Committee of Experts in its report referred to the Government's information to the effect that the Convention had helped to strengthen freedom of association and trade union organisation, develop union activities and orient trade union freedom towards its goals in terms of defending workers' rights; it also referred to a new draft Labour Code. However, since the legislative and practical position had not changed, the Committee of Experts recalled the current divergencies, including provisions on trade union monopoly, restrictions on union activities for foreign workers, supervisory powers of the authorities as to the functioning of union organisation and above all restrictions on the free exercise of the right to strike. The Workers' members also felt it necessary to express their view on the right to strike so as to maintain balance in the report and for the future work of the Committee, since the Employers' members spokesman had continually during the examination of individual cases mentioned this to explicate the Employers' attitude. The Workers' members repeated clearly and unequivocally their support for the Committee of Experts' interpretation of the right to strike, both as regards the right to strike in general, not only as concerned the way in which it was carried out, but also possibly limited. They considered the Experts had correctly applied working methods and principles referred to in paragraph 6 of their general report. The right to strike in principle and as it is practised under the law was an essential means of realising trade union freedom. It was also a basic ingredient of trade union freedom. The Committee of Experts' opinion was not new, and it had been known for many years; the Committee of Experts repeatedly confirmed it in its report. Their view was founded on case-law of the tripartite Committee on Freedom of Association and there was no reason to change the established views. Contrary to the Employers' members' spokeman's ideas, universality of standards does not allow selective interpretation of freedom of association and the elements making it up - including the right to strike - according to the political system or the economic or social situation of a given country. The Workers' members reiterated their position in the discussion of problems related to the exercise of the right the strike in Kuwait. Referring to the Government representative's statements that the Government was trying to improve the situation, and that a draft Code had been prepared, the Workers' members thought it necessary for the Government to transmit without delay information for examination by the Committee of Experts on all points mentioned in its report to the Office, so that the Conference Committee could follow developments and examine the case again next year.

The Employers' members recognised the extraordinary circumstances that the Government had faced in the past few months and appreciated the rapidness with which it had come back to this issue and had proceeded to submit a draft Code to the legislature. They considered that the Government should submit a copy of the draft legislation to the ILO in order for the Committee of Experts to have a better appreciation of the degree to which the requirements of the Convention were met. As regards the right to strike, they recalled their position that the finding of a detailed regulatory scheme relating to the right to strike is not appropriate under Convention No. 87 because the words "right to strike" do not appear in the text of the Convention. The Conference Committee, in deciding not to consider the controversial issue of the right to strike, simply did not address it and made clear that the instrument deals with "freedom of association and not the right to strike". The Employers' members recalled the remarks they had made in 1991 that many of the decisions and interpretations of the Committee of Experts were drawn from decisions of the Committee on Freedom of Association, and that the latter Committee was not limited to the words found in Conventions Nos. 87 and 98 and was in a position to espouse general principles. They therefore noted their reservation with respect to the right to strike and the Experts' findings, in particular that restrictions could not be placed in the case of strikes in the essential services in the strict sense of the term, which they considered going too far in terms of what Convention No. 87 contemplates. With the above-mentioned reservation, the Employers' members associated themselves with the comments of the Workers' members and hoped that the Government would soon be in a position to report that it is conforming with the requirements of the Convention.

A Workers' member of France stated that the case had been discussed for several years and referred to the situation of migrant workers, a large part of the workforce. Since restrictions on freedom of association concerned these workers, it might be considered that in Kuwait very few people could join a union. The very nature of political power was undemocratic; far from being democratic, the regime was feudal: promised amendments had not been made, migrant workers were subject to restrictions, compulsory service at will, and placed outside legislation. The Government should make it clear whether proposals for amendments would explicitly eliminate discrimination against foreign workers. As regards the right to strike, the speaker stated that it was part of international labour standards and any government which undertakes to observe the Convention must also observe the right to strike for all categories of workers.

A Government member of Germany associated himself completely with the previous speakers as regards the current case. On the other hand, his agreement on the conclusions which the Committee will adopt in this case did not extend to all aspects of the interpretation of the Convention advanced on various sides.

A Workers' member of Italy considered that Kuwait had made insufficient efforts to observe the Convention, although during recent events it promised to democratise and freedom of association was an essential part of this. Failing observance of the Convention, democracy was a long way from being realised. The role of unions was essential for reconstruction of the country on a more just social basis. Prohibition of political activities for unions contradicted their very political participation in liberation of the country. The majority of workers' dependants were migrants and their freedom of association was restricted if such workers could not join unions of their choice. As Kuwait had huge resources, the Government could adopt legislation in conformity with the Convention.

The Government representative emphasised that great progress had been made in his country, which has a legitimate Constitution approved by the people, under a democratic, and not fuedal, Government. General elections are scheduled for October 1992 for the people to choose their representatives in Parliament which will guarantee the legitimacy of the Government. As regards migrant workers, he stated that about half a million foreign workers had come back to Kuwait. Concerning the single trade union system, he indicated that there were several trade unions representing employees not only in banks or industries but also in ministries; foreign workers are also allowed to join these trade unions. He recalled his initial statement that there was no prohibition on affilation to trade unions, and also stated that there were people of 80 different nationalities in the country. Numerous strikes had been organised even in the public sector, and the Government did not intervene to stop these strikes or to arrest representatives of workers for acting in an undisciplined manner. The Government merely called on the two parties to attempt to settle the dispute. Numerous collective agreements had been signed to settle disputes that had been expressed through strikes. As to the role of supervision that the Government undertakes on trade union affairs, the Ministry of Labour and Social Affairs provides subventions to all representative associations, to trade unions and private voluntary organisations. While the Government supervises the use of this assistance, trade unions have every right to undertake any activities they wish. He declared that the Government would make every effort to submit sufficient information concerning the application of the Convention and to include the revision of the Labour Code among the priorities in the legislative authorities for reorganising the society of the country.

The Workers' members rather had the impression that legislation in general and more particularly the aspects touching directly or indirectly on the rights of migrant workers do not figure in the priorities of the Government.

The Committee noted the information supplied by the Government representative. It acknowledged the difficulties the Government had been meeting recently, but it felt bound to recall that the subject-matter had been a point of concern in the reports of the Committee of Experts for many years and it was disappointed on account of the Government arguing its case referring to a Law dating from 1964, although that Law had been taken fully into account by the Committee of Experts. On the other hand, the Committee was under the impression that progress seems to be made in bringing the legislation in the direction of full conformity with the Convention. In order that the Committee of Experts can make a full assessment of the situation, the Committee expressed its hope that the Government would send the copy of the draft Labour Code to the ILO and suggested the Government might ask the assistance of the Office in this respect.