Cas individuel (CAS) - Discussion : 1996, Publication : 83ème session CIT (1996)

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

The Government supplied the following information:

The Committee refers to the need to amend section 2 of the Labour Code (Act No. 38 of 1964) concerning the exclusion of certain categories of workers from the scope of the law.

The Ministry of Social Affairs and Labour has prepared a bill to repeal section (2) of Act No. 38 of 1964 concerning employment in the private sector. Under this draft legislation, the section will be replaced by another text which takes into consideration recent legislative developments in the field of labour, in accordance with international conventions ratified by the State of Kuwait. The Bill was submitted to and approved by the Council of Ministers, and is now undergoing other procedures which will be communicated to the ILO. Concerning the Committee's observations on sections 71, 72, 73, 74, 79, 80 and 86 of the Labour Act concerning employment in the public sector, these are taken into account in the new bill (section 12).

Section 100: Employers' and workers' organizations

The right to establish employers' organizations and the right of trade unions to organize shall be ensured, according to the provisions of this Act. The provisions of this section shall apply to employees in the public, oil and state sector except military personnel, police forces and the National Guard.

Section 101

Workers employed in the same enterprise, or in the same occupation or industry, or in similar or related professions, industries or occupations, shall have the right to associate in trade unions which defend their interests, seek to improve their material and social conditions and represent such workers in all matters related to them. Employers shall have the right to establish their federations for the same purpose, provided they include ten members or more.

Section 102

The following procedures shall be adopted when establishing workers' and employers' organizations:

(i) at least 15 Kuwaiti workers wishing to establish a trade union shall be required to establish a trade union, at least ten Kuwaiti employers wishing to establish an association shall be required to establish an association in order to hold the constituent general assembly of the two categories, provided they fulfil the legal conditions;

(ii) the constituent general assembly shall endorse the statutes of the organization, guided by the standard by-laws which shall be issued by the minister concerned;

(iii) the constituent assembly shall elect the board, according to the provisions of its statutes; there shall be no less than seven and not more than 21 members on the board.

Section 103

The elected board shall deposit, within 15 days of its election, the following documents with the Ministry concerned:

(a) a list of founding members, including their age, occupation, workplace, signed by each one of them;

(b) the minutes of the constituent assembly meeting during which the constitution of the organization was adopted and the election of the board took place;

(c) two copies of the organization's contribution;

(d) one copy of the minutes of the board in which the capacity of each member shall be indicated;

(e) an attestation by the Ministry of Interior of good conduct for each founding member;

(f) the name of the bank in which the organization's funds are deposited.

The organization shall be considered registered as from the date on which the above documents are deposited, and shall acquire its legal personality upon registration. The Ministry concerned should provide guidance and advice to the organization in order to remedy establishment procedures or to fulfil the conditions required for the establishment of such organizations.

Section 104

The constitution of the organization shall indicate the aims and objectives for which it was established, membership conditions, members' rights and duties; amount of contributions paid by members; mandates of the regular and extraordinary general assemblies; the number of board members, duration and scope of their mandate; procedures concerning the budget measures to amend the by-laws in the case of dissolution of the organization; the liquidation of its funds; maintaining records and books by the organization; basis of self-control measures. While establishing their constitution, the trade union organizations shall be guided by the standard by-laws issued by a decision of the Minister concerned.

Section 105

Workers and employers and their organizations, while enjoying the rights provided for in the previous chapter, shall respect the laws in force in the State, and shall exercise their activities within the limits defined in the statute of the organization.

Section 106

The Ministry concerned shall provide advice and guidance to workers' and employers' organizations concerning the proper application of the law and the way in which records and financial books shall be maintained; guidance shall be provided to avoid any deficiencies in data, provided that such procedures shall take place at the organization's headquarters and during working hours.

Section 107

Trade unions registered in accordance with the provisions of this chapter shall have the right to establish federations defending their joint interests.

Federations established in accordance with the provisions of this law shall have the right to establish a confederation among themselves.

The same procedures shall be applied in the establishment of a federation or confederation as in the case of trade unions.

Section 108

Federations and the confederation shall have the right to join Arab and international confederations when they consider that they have mutual interests; the Ministry concerned shall be notified within a week at the latest, after the acceptance of their affiliation, for registration and publication.

Section 109

A worker shall have the right to belong both to the enterprise trade union committee and to the trade union of that occupation.

Section 110

Employers' and workers' organizations may be dissolved by one of the two following means: voluntary dissolution by a decision of the general assembly according to the constitution of the organization; judicial dissolution by a ruling of the tribunal of first instance, at the request of the Ministry concerned, if the organization has committed an act considered as an infringement of the law or of its constitution; an appeal may be lodged and the ruling may be contested in accordance with the civil and trade laws.

The assets of the trade union, so dissolved, shall revert to the Ministry of Social Affairs and Labour.

Section 111

Penalties provided for under section 139 shall be applicable to every employer, or his representative, who terminates a worker or takes sanctions against or compels a worker to belong or not to a union, or withdraw from a union because of his involvement in trade union activities or in the legal implementation of trade union decisions.

In addition, a Government representative stated that since it became a Member of the ILO in 1961, Kuwait has tried to establish the foundations for peace and social justice in conformity with the objectives of the ILO. In effect, Kuwait had ratified a certain number of Conventions and among them the most important: Convention No. 87, concerning freedom of association, which the report of the Committee of Experts referred to in its second part, which contained a certain number of observations. He emphasized that Kuwait had not spared any effort to adopt the necessary measures to improve the situation of workers and to modify legislative texts. For example, Kuwait had established a supreme consultative committee, a tripartite body, to review the questions related to labour and workers. To promote fruitful cooperation with the ILO, the State of Kuwait had requested the Organization for assistance through a multidisciplinary team specializing in labour-related matters, particularly with respect to the disabled, cooperatives, and occupational safety and health, with the goal of obtaining its expert opinion on these matters. This took place in 1984 and 1994-95. The report of this group welcomed Kuwait's cooperation with the members of the group and contained a certain number of recommendations which had been taken into account. The Director-General of the ILO visited Kuwait at the beginning of this year in order to observe the situation of workers. In his report presented to the Conference at this session, the Director-General welcomed the improvement with respect to the protection of migrant workers and referred in particular to some decisions adopted by Kuwait to guarantee that protection. Furthermore, from 26 March to 1 April 1996, Kuwait used the services of a legal expert from the ILO, who examined the new draft Labour Code which modified the law in force and made observations so that the draft would be in conformity with the Conventions of the ILO. The expert wrote a report just before this Conference began indicating that the mission had been successful and that encouraging results had been achieved thanks to the attention paid to the issues by the responsible officials. The new draft legislation was undoubtedly an important new step compared to the previous legislation, taking into account the observations and comments of the Committee of Experts, and was in conformity with the Conventions of the ILO which was a concern to the Government. The Government expressed the hope that the draft legislation could be promulgated soon. In addition, the authorities have adopted some legislative texts which provide greater protection to workers. In this respect, the speaker referred to certain specific legislative provisions.

The Workers' members noted that the Committee of Experts have for a number of years provided this Committee with detailed lists of those aspects of Kuwaiti law, particularly of the Labour Code, Act No. 38 of 1964, which were in direct breach of the requirements of the Convention. With equal persistence the Committee has noted assurances from the Government concerning human and workers' rights; has recorded proposals, plans and work under way to amend the Labour Code; and has sought further information and urged concrete action. The Workers' members expressed extreme concern since this year this Committee was once again faced with almost the identical situation of the past years.

The Workers' members noted two developments which could, however, be recorded as indicating some small progress. First, there was the Director-General's Report indicating that as a result of technical assistance provided through a multidisciplinary mission in November 1994, the Government of Kuwait had made some changes to the treatment of migrant workers and had agreed to study others. Unfortunately, none of these changes dealt with the issues concerning freedom of association and the right to organize. These rights also seemed to be denied to domestic workers who were overwhelmingly women and migrant workers in Kuwait. The Workers' members noted that the second hint of progress was contained in the Kuwaiti Government's written reply to the observations of the Committee of Experts. Apparently, the proposed changes to the Labour Code, Act No. 38, had gone as far as being approved by the Council of Ministers and would take account of the observations on sections 71, 72, 73, 74, 79, 80 and 86 of the Labour Code. The Workers' members noted that this Committee must welcome all progress however small, but without details on the proposed changes to the sections cited, it was difficult to be confident of how much progress would be made. They expressed caution that the experience of this case should forewarn against false expectations.

The Workers' members enumerated the key points that had been repeatedly listed by the Committee of Experts as requiring change and evaluated them against the information provided by the Government of Kuwait:

- Prohibition against establishing more than one union for an establishment; the requirement that unions have 100 workers to register, and that there must be ten employers to form an association; the requirement that trade unions and federations only cover the same or similar occupations or industries; the requirement of only one general confederation; the system of trade union unity. These referred to sections 71, 79, 80 and 86 of the Labour Code. The Government has signalled changes to all four sections to bring them into accord with Convention No. 87. However, there were no details provided.

- Residency requirements of five years for non-Kuwaiti workers before joining a trade union; requirement for a certificate of good conduct and good reputation to join a union; and denial of the right to vote and to be elected for trade unionists who are not Kuwaiti nationals, except as a representative with the right only to express opinions (section 72 of the Labour Code). Again, amendment was promised.

- Amendment was also promised on the prohibition of trade unions against political or religious activity (section 73).

- Requirement for a certificate from the Minister of the Interior stating there was no objection to any founder member of a trade union. However, on the issue of the requirement of 15 Kuwaiti workers as a necessary precondition to establish trade unions - the new section 102, appeared to perpetuate that stipulation.

- The wide powers of supervision of authorities over trade unions and records (section 76). The Government did not propose to amend this provision and indeed it was reiterated in sections 103, 104, 106 and 110 of the draft law, as was the reversion of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution (section 77). The powers of supervision retained were extensive, oppressive and provided for significant state control and interference in trade union affairs.

- Similarly, the status quo remained with respect to the restriction on the right to strike (section 88).

- It was completely unclear from the Government's comments as to exactly how far the extension of the Labour Code would go and whether it would cover Indian and Pakistani citizens who were fixed-term workers; domestic workers and seafarers.

Overall it appeared that the law in Kuwait would remain extremely restrictive, with only a few initial points of convergence with the Convention. The Workers' members certainly recognized what appeared to be a small but definite opening of the door by the Government of Kuwait to changes to meet the requirements of the Convention. They strongly supported the recommendations of the Committee of Experts when it urged the Government to ensure that domestic legislation should give all workers and employers, without distinction whatsoever, whether they are nationals or foreigners, public servants, domestic workers or seafarers, the right to join occupational organizations of their own choice to defend their interest, including the right to strike, and for workers' and employers' organizations the right to join federations or confederations, to elect their representatives freely and to organize their management without interference from the public authorities in accordance with Articles 2, 3, 5 and 6 of the Convention. The Workers' members shared the view of the Committee of Experts when it urged the Government of Kuwait to make full use of ILO assistance in the drafting of legislation. Lastly, they would welcome a further report next year which hopefully would record actual progress and not only proposed changes.

The Employers' members recalled that this case had been examined by this Committee several times in the early 1980s and also in 1992, and then again in 1995. The long and detailed list of points by the Committee of Experts showed that there were considerable restrictions on freedom of association in the law and practice of Kuwait. They expressed special concern on: (1) numeric requirements in order to be allowed to set up a trade union and in order to be allowed to set up an employers' association; (2) restrictions as to the setting up of federations or confederations of employers' and workers' organizations, leading to a single union system which was certainly not in conformity with the requirements of freedom of association; (3) restrictions as to the extent to which trade union rights may be exercised by workers, restrictions such as, for example, a residence requirement for foreigners, the need to work for a certain period in a particular occupation; (4) the ban on political activity on the part of trade unions; (5) there was a large group of workers who were basically excluded from the scope of application of the Labour Code and therefore did not enjoy freedom of association to any degree whatsoever. Judging by the categories listed in the observation, one could safely state that a fairly large number of workers were in this particular situation.

The Committee of Experts in its report also touched briefly on the restriction of the free exercise of the right to strike. The report did not provide further details as to exactly what this restriction entailed. On this point, the Employers' members stated that no country guaranteed the absolute free exercise of the right to strike and that it was not called for in the Convention.

The restrictions enumerated above (1-5) were clear and unambiguous and therefore the Committee must deal with this matter. In 1995, the Government of Kuwait had already promised to this Committee that there would be change. Judging by this year's report of the Committee of Experts, the gap between national law and the requirements of the Convention had only narrowed very slightly, if at all. Nevertheless, the situation was now at a new stage since the Government representative had referred to efforts made at the national level to change the legislation in Kuwait, and the Government had been advised by an expert from the ILO in their endeavours to review and amend the legislation. The Employers' members welcomed the Government representative's statement that the Government of Kuwait intended to amend all important points as recommended by the Committee of Experts. However, according to the written information, provided they were not convinced that all the necessary changes were being made and, in some cases, the details necessary to be able to judge whether change had occurred or not were lacking. The assurances and promises of the Government representative should be reflected in the conclusions. The Government should submit a full report on measures which had been taken so far and measures which were planned for the imminent future, as well as copies of legal or draft legislation which was being or which had already been enacted. This Committee should not try to assess the progress today and should ask the Committee of Experts to carefully investigate the situation in order for this Committee to review the situation again in the near future. The Office could provide technical assistance to the Government to assist it in bringing its legislation into line with the terms of the Convention, and it was to be hoped that this could be done as quickly as possible. Since this problem had persisted for many years, the Employers' members urged the Government to take measures with considerable speed in order for the situation to be rapidly resolved.

The representative of the Secretary-General corroborated the information given by the Government representative and noted that the Government of Kuwait had requested special assistance from the ILO so as to revise the whole Labour Code, including the provisions which referred to the matters dealt with by Convention No. 87. Between 26 March and 1 April of this year, a technical assistance mission took place in Kuwait in extremely positive conditions. An ILO expert presented a draft of reforms with the cooperation of the International Labour Standards Department, which was submitted to the Government of Kuwait. The speaker was happy to indicate that the Government of Kuwait had accepted the suggestions, made by the Committee of Experts, contained in the last paragraph of the observation made on Convention No. 87.

The Workers' member of Turkey quoted the conclusions of this Committee on the same case in 1981. He expressed regret that, during the intervening 15 years, there had not been much progress, since this Committee had discussed almost identical problems in 1983, 1984, 1992 and 1995, with similar conclusions.

The speaker stated that the requirement of at least 100 workers to establish a trade union was, especially in Kuwait, paramount to denying the right of association. Last year, the Government representative stated that this requirement was for foreign workers only and that there were the additional requirements of a minimum of five years of residence in Kuwait, as well as obtaining a certificate of good reputation and conduct. The Government representative also had stated that foreigners from 138 countries comprised 80 per cent of the economically active population. The speaker observed that these restrictions meant the denial of the right of association to 80 per cent of the workforce.

The speaker stressed that the prohibition of establishing more than one trade union for a given establishment was in violation of the Convention. He noted that the Government representative, in 1983, had stated that, "the low population and the expansion of small enterprises are obstacles to the formation of trade unions at the establishment level. This is why in practical terms it is not possible for more than one trade union to be set up in the same enterprise." The speaker noted that it was difficult to reconcile this argument with the requirements of 100 workers with good conduct and five years of residence to establish a trade union for 80 per cent of the workforce.

With respect to the single trade union system in Kuwait, the speaker stressed that undoubtedly there was a violation of the Convention. He emphasized the importance of unity at the national and the international levels more than ever, in the face of the ongoing globalization process. In 1983, the Government representative tried to legitimize the single federation structure by claiming that "divergencies lead to struggle and have a harmful effect on the unity and solidarity of the working class". The same mentality or the same pretext was still valid today.

The speaker observed that the prohibition of trade unions from engaging in any political activity was another violation of the Convention. He noted that during last year's discussions, the Government representative acknowledged the existence of the prohibition and "wondered what the objectives of trade unions carrying out such activities would be". He stressed that there was no need here to explain the increasing necessity of the direct political activity and involvement of trade unions to safeguard and promote the rights of workers; and that the supervisory bodies of the ILO had many decisions concerning the political activity and actions of trade unions.

The speaker noted that the wide powers of supervision of the authorities over union finances had always been considered a violation of the Convention. It should be up to the competent bodies of the trade union itself to audit the finances of the union.

The speaker observed that in the event of dissolution, the trade union assets were handed over to the Ministry of Social Affairs and Labour. He stressed that the arguments of the Government representative on this matter, which were made on previous occasions in this Committee, were irreconcilable with the Convention and that it should be up to the trade union itself to decide on the fate of its property.

It was noted that with regard to the restrictions on the free exercise of the right to strike, the Committee on Freedom of Association and the Committee of Experts had, on many occasions, stated that, as long as they were peaceful, all kinds of industrial action were to be considered legitimate. The legislation in Kuwait did not comply with this principle. He agreed with the Committee of Experts concerning the comments on the denial of the right to organize of certain categories of employees. Lastly, he expressed the hope that there would be progress with respect to this case next year.

The Workers' member of the Netherlands recalled that the Government last year made a firm commitment to human and trade union rights, which was welcomed. The first proof of this commitment was a draft Labour Code, which was now, as the Government representative stated, in an important stage of development before the Council of Ministers. The speaker noted that, however, this draft had not been seen, and asked when exactly the law would come into force. In this connection, he repeated the Committee's request of last year that the Government consult the ILO before the proposed legislation was adopted. With reference to the large number of migrant workers in Kuwait, the speaker acknowledged that the situation was not easy and certainly not typical. Nevertheless, he observed that the solutions which the Government had sought in the past and presently, were not in line with the Convention. He noted that the Government wished to find solutions step by step, but that given the longevity of the case, he asked the Government representative to come forward with some credible progress. He recalled that some of the problems seemed to be less complex than others. For example, the five-year residence requirement, the right to vote and to be elected into trade unions - these elements could be left to the trade unions at this very moment and solved immediately. With respect to the pressing complex problems, the Government should at least take recourse to technical assistance of the ILO.

The Employers' member of Kuwait stated that the situation in his country was good and stable with respect to employment and workers. He certainly did not claim perfection - only God could be perfect. The interest Kuwait attached to comply with the ILO's international standards was demonstrated by a revised draft Labour Code. The social partners, Parliament and others debated this draft legislation. The speaker highlighted the social and economic consequences of the aggression perpetrated in 1990. It would have been fair if this Committee and the Committee of Experts had also referred to the latest positive developments and all of the improvements which affected the living and working conditions of workers in Kuwait, instead of limiting themselves to critical comments. For example, he mentioned the establishment of the tripartite superior consultative committee, which dealt with all issues related to labour and workers. The speaker referred to a law which was over 20 years' old now and had not been applied. The Director-General stated in the annual Report presented to the Conference, on the activities of the ILO, that Kuwait was improving the situation for migrant workers. Moreover, the same comments were made by the ILO legal expert who provided technical assistance to Kuwait with regard to the new draft labour legislation. According to this expert, the new draft law substantially changed the law currently in force. These were clear examples of how Kuwait always adopted a constructive attitude with respect to the ILO. Kuwait had enacted several laws and proposed draft legislation to be in line with the noble objectives of the International Labour Organization. The draft amendments to the Labour Code would be submitted to the competent authorities. This was necessary and in case the new Labour Code had not been enacted by next year, this would be due to the requirements of democracy and due process, since draft legislation must be placed before the legislative and executive bodies, etc. During this process, all of the observations made by the Committee of Experts would be taken into account.

The Government representative thanked all the speakers for their comments. With respect to Indian and Pakistani workers, the relevant text had existed since 1974. The said text had not been repealed but had not been applied for several years. The Government had presented a draft proposal to repeal this text. In addition, there have been ongoing contacts between the Government of Kuwait and the ILO concerning technical cooperation in various areas related to labour matters, particularly with respect to labour law. The speaker expressed the hope that the new draft law would soon be enacted once it had gone through the different legal channels and that it would be in conformity with the Convention.

The Workers' members emphasized the central importance of the autonomy of the trade union movement in Kuwait. They also stressed the importance of assuring that foreign workers in Kuwait had the right to belong to a trade union and a right to a meaningful voice in Kuwait, since the largest proportion of the workforce was not Kuwaiti, and thus, the vast bulk of the workers had no right to join an organization because they were foreign. They had no voice within the trade unions that did exist and they were not even permitted to advance grievances in their own name. The Workers' members looked forward to the legislation referred to, and urged the Government to make full use of ILO assistance in this respect. Lastly, concerning the views of the Employers' members on the right to strike, the Workers' members considered that since the matter was not central to the conclusion sought from the Committee, they saw no further need to pursue the matter at this time, and were comfortable with the views of the Committee on Freedom of Association and the Committee of Experts on this question.

The Committee noted the written and oral information provided by the Government of Kuwait. The Committee observed with regret that, for several years, the Committee of Experts had been requesting the Government to eliminate the many divergencies which existed between legislation and the Convention. The Committee particularly requested the Government to adopt legislation which would give all workers, 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 professional interests. The Committee took note of the assurances given by the Government concerning its desire to adopt, with the assistance of the ILO, a draft Labour Code in the near future, which would repeal several provisions which ran counter to the Convention, and would contain provisions guaranteeing the exercise of freedom of association. The Committee expressed the firm hope that the next report from the Government would indicate decisive and specific progress in the adoption of such legislation which would enable the full application of the Convention in law and in practice. It urged the Government to provide a detailed report on the measures envisaged and adopted in this connection.