Caso individual (CAS) - Discusión: 2000, Publicación: 88ª reunión CIT (2000)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Kuwait (Ratificación : 1961)

A Government representative, referring to the Committee of Experts' comments, stated that his country had been a democracy for almost 300 years. Its tenet was equality and social justice and was founded on the principles of Islam. He also noted that the Constitution of Kuwait was based on international Conventions and that Kuwait was therefore committed to complying with its obligations under those instruments. He explained that the delays in drafting the new legislation were due to the fact that it was extremely detailed. The draft text was in fact being studied by various committees, who were examining it in depth in view of the comments received from all groups. The new law would eliminate the requirement that a particular number of workers or employers was needed to form workers' or employers' organizations. This amendment was evidence of the Government's commitment to the principles of Convention No. 87. The Government representative indicated that he had a long list with him of all the changes made in the draft text. While he did not wish to take up the Committee's time by reading out this list, he assured the Committee that the draft text was in accordance with the Committee of Experts' comments. In July 1999, new elections had been held for the Kuwaiti National Assembly following a protracted election campaign. In the interim, Kuwait had benefited from an ILO mission which had provided technical assistance on the provisions in the draft law, including principles established in international Conventions and removing provisions from the draft text that were not in conformity with those Conventions. The draft law would soon be presented to the National Assembly for adoption. The Government representative indicated that Kuwait was proceeding in a transparent manner and believed that his Government's efforts would benefit Kuwaitis, noting that Kuwaiti society enjoyed true democracy, freedom of the press, equality and genuine separation of powers. Kuwait had improved the situation of domestic workers and national legislation and now allowed these workers to form trade unions. This change had been noted by the International Confederation of Free Trade Unions (ICFTU), who had observed that migrant workers in Kuwait had joined unions. In fact, migrant workers constituted one-third of the membership in such trade unions. He explained that migrant workers were twice as numerous as Kuwaitis and asked the Committee to take the unique composition of Kuwait's population into account, pointing to the number of migrants and the diversity of cultures and religions in his country.

The Worker members noted that it was not the first time that the Committee examined the question of the application of Convention No. 87 by Kuwait. It had in fact examined this case on several occasions in the beginning of the 1980s and furthermore in 1992, 1995 and 1996. The long and detailed list of points raised by the Committee of Experts evidenced that freedom of association was subjected to severe restrictions in Kuwait. Additional violations of Convention No. 87 had been established both in law and in practice. Certain issues raised particular concerns: the quantitative requirements to be authorized to establish a trade union or an employers' association and the obligation to have at least 15 Kuwaiti members to form a trade union. This latter requirement had affected several sectors, such as the construction sector, where the major part of the workers were foreigners, making it impossible for them to unionize. They had also mentioned the discrimination against non-national workers who were required to have five years' residence in Kuwait before they could join a trade union. As approximately 80 per cent of the workers were of foreign origin, a large part of these workers were thus deprived of the freedom to associate. The Worker members also referred to the prohibition to establish more than one trade union per establishment or activity, as well as the wide powers of supervision of the authorities over trade union books and registers. These were just some pertinent examples which demonstrated that there was a series of legal provisions in Kuwait which were contrary to the provisions of the Convention. In 1996 the Government had assured the Committee that it intended soon to adopt a draft labour code which would abrogate the provisions which were contrary to the Convention and which contained guarantees for the exercise of freedom of association. In its report to the Committee of Experts, the Government referred to this draft law which thus had not yet been finally adopted. The Committee of Experts had also noted that several provisions of this text continued to be in contradiction with the Convention. This concerned in particular the quantitative requirements for establishing a workers' or employers' trade union and the discrimination based on nationality. In addition, the powers of the authorities both as regards the establishment and the dissolution of these organizations remained too extensive. There was a high risk of interference by the public authorities in the functioning of workers' organizations, as each founding member had to obtain a certificate of good conduct and, as in the event of a dissolution of a trade union, its assets reversed to the Ministry of Social Affairs and Labour. The Worker members shared the hope of the Committee of Experts that this draft law would soon be adopted and promulgated. The Worker members urged the Government, without further delay, to guarantee both in law and in practice to all workers and employers without any distinction, be they nationals or foreigners, and irrespective of their occupation, the entitlement to join the professional organizations of their choice so as to defend their interests. They also requested the Government to submit next year to the Committee of Experts, a detailed report on actual progress accomplished, and not only on the proposed legislative amendments.

The Employer members noted that this case had been before the Committee in the 1980s as well as in 1995 and 1996 with regard to the application of Convention No. 87. There was a long list of discrepancies in the national legislation, including restrictions on the freedom to establish employers' or workers' organizations as well as restrictions on their activities. The Employer members also stressed that whole groups were excluded from coverage under the national legislation and commented on the long residency requirement for foreign workers before they could join a trade union. Noting that Kuwait had a rather monopolistic trade union system, the Employer members also referred to possibilities of interference on the part of the public authorities in trade union activities. The Government representative had indicated that a draft law would be adopted which would eliminate these violations, which was also reflected in the Committee of Experts' comments. While the Government representative had declined to describe the changes made in the draft law to save the Committee's time, the Employer members noted that the text of the draft law would need to be examined by the Committee of Experts in any event and asked the Government representative to list at least one or two of the most important changes in his concluding statements. The Employer members noted that, given the high number of foreigners in the country, it was crucial to solve the problem of the manner in which foreign workers as well as employers could organize. If the Government representative did not wish to list the changes made by the draft text, the Employer members requested that he explain the legislative process and indicate precisely when the new law would be adopted. For the moment, the Employer members adhered to their opinion that the national legislation should be amended in many respects and urged the Government to effect these changes forthwith.

The Employer member of Kuwait referred to the specific composition of the population in Kuwait. As the Employer members had noted, Kuwait had a high proportion of foreigners, who constituted approximately 40 per cent of the population. However, he believed that Kuwait was absolutely convinced of the importance of the Convention, particularly because it was a democratic State that believed in democracy, freedom and equality. He noted that 130 nationalities were represented in the Kuwaiti population and that there were double the number of foreign nationals in comparison to Kuwaiti nationals. The Employer member noted that he had 100 workers in the small enterprise which he operated. Given the broad range of nationalities in his enterprise, he might have had five to ten trade unions in his company. He also pointed out that Kuwait was in the Middle East, with all the difficulties and instabilities that this entailed. If tensions arose, he would face intractable problems as an employer. Kuwait's situation and its unique population were important elements that the Committee should consider. Moreover, the fact that trade union rights were an extension of political rights in the purest sense should also be taken into account.

The Worker member of Greece considered that it was very surprising to hear the Government representative affirming that Kuwait was a country where equality reigned. This amounted to a statement that the Committee of Experts had been wrong. In the course of the discussion, it had been said that the country had had difficulties resulting from the presence of nationals from many different countries. Everyone knew, however, that Kuwait was a very rich country. Although it undoubtedly needed to attract a large number of women and men to work in the country, it was not entitled to depriving them of almost all their rights. It was further also incorrect to assume that a recognition of the freedom of association would entail the establishment of ten unions within the same enterprise. Furthermore, such an assertion constituted an acknowledgment of the absence of freedom of association in Kuwait. A country as wealthy as Kuwait had no excuse not to implement the fundamental principles in Convention No. 87. In conclusion, the speaker expressed the hope that, even if this case was not placed in a special paragraph, the Government of Kuwait should be invited to inform the Committee on progress made next year.

The Government representative of Kuwait disagreed with the comments of the Worker member of Greece that foreign workers in Kuwait remained in poor conditions. He characterized these as totally gratuitous allegations and cited the alliance of 31 countries which had helped Kuwait restore its sovereignty as proof that Kuwait was a democratic country that respected freedoms.

Responding to the Employer member's comments, he confirmed that he had a long list of changes to the draft law that took the observation of the Committee of Experts into account. While he was willing to list all the deletions to the national legislation and the innovations introduced by the draft law, he once again stated that he did not wish to take up the Committee's time and promised that his Government would expedite the adoption of the draft law. This would be a priority item for the new Parliament and next year he would be able to confirm that progress had been made to the Committee's satisfaction.

The Worker member of Greece declared to have taken note of the declaration by the Government representative according to which all the undertakings made by him today, would be fulfilled by next year. He reiterated his request that the Government next year provide the Committee with information on actual progress made.

The Worker members recalled that contradictions with Convention No. 87 had been established. They therefore urged the Government to take all necessary measures to ensure that national legislation and practice be brought into conformity with the Convention without any further delay. There were no excuses for a violation of this Convention, which reflected fundamental labour rights. They reiterated their request to the Government to submit next year to the Committee of Experts a detailed report on actual progress both in law and in practice.

The Employer members stated that, in light of the discussion, the Committee was compelled to note once again the considerable discrepancies that existed between Kuwaiti legislation and the provisions of the Convention. As in the past, the Committee must urge the Government to remedy the situation. It should request the Government to report on the adoption of the draft law and supply a copy so that the Committee could determine what changes had been made.

The Committee noted the statement made by the Government representative and the discussion which took place thereafter. It noted with regret that the Committee of Experts had been commenting for many years now on the need for the Government to eliminate the many divergences existing between the legislation and the Convention. In particular, the Committee of Experts had urged the Government to adopt legislation which would grant to all workers and employers, without distinction of any kind, whatever their nationality or their profession, the right to establish the organizations of their choice with a view to defending their occupational interests without undue interference from the public authorities. Noting the Government's previous indication that legislation would be drafted so as to ensure full conformity with the provisions of the Convention, the Committee expressed the firm hope that the Government's report due this year would indicate the concrete measures taken in law and practice as well as specific progress attained in this regard in order to ensure full compliance with the requirements of the Convention.