Cas individuel (CAS) - Discussion : 1995, Publication : 82ème session CIT (1995)

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

A Government representative of Kuwait indicated that the demographic composition of Kuwait was different from that of other countries in the world in that the economically active population was made up of 80 per cent foreigners who were from 138 different countries. This had a considerable influence on the country.

The Committee of Experts was asking for section 2 of the Labour Code (Act No. 38 of 1964) to be amended. However, the exclusions provided for in this provision did not imply that the workers mentioned therein were excluded from the law. They were instead covered by other Acts such as the Act on Public Services. A certain number of workers were governed by statutes under the Ministry of the Interior. As for the exclusions respecting contractual workers, he emphasized that they had not been applied for a long time. Indeed, the necessary measures had been taken recently to repeal that provision.

As regards the requirement of at least 100 workers in order to establish a trade union and ten employers to form an association, this was applicable to foreign workers who were in Kuwait for a certain period of time and who would return to their countries once their tasks had been completed. As to the number of employers necessary to form an association, this provision would shortly be amended. Concerning the requirements of having a minimum residence period of at least five years in Kuwait as well as obtaining a certificate of good reputation and conduct before being able to join a trade union, this was stipulated to ensure that there would be stability in trade union membership since non-Kuwaiti workers were not stable residents. The minimum number of 100 workers was quite small. Otherwise there would be trade unions with a very small number of workers from a given nationality. Regarding the prohibition on the establishment of more than one trade union for a particular establishment or activity (section 71), Kuwaitis in tens of thousands of establishments amounted to only 700,000 workers.

With regard to section 73, which contained a prohibition on trade unions from engaging in any political or religious activities, the Government representative wondered what the objectives of trade unions carrying out such activities would be. After all, freedom of religion and expression was guaranteed in Kuwait through newspapers and magazines. He considered moreover that the differences in the economic and social situations of various countries should be taken into account by the Committee when examining these issues. Concerning the devolution of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution, the Ministry gave support to trade unions in practice, which was why if a trade union was dissolved the assets quite naturally reverted to the Ministry. Finally, he asserted that there were no legal provisions which restricted the right to strike. Workers in the oil sector had gone on strike recently. Negotiations had taken place between the Government and trade union representatives further to which section 88 had been applied. As a result, the matter was submitted to a chamber of the Court of Appeal in which employers and workers were represented.

The speaker concluded by informing the Committee that a large number of observations concerning Convention No. 87 and other ratified Conventions had been taken into account in the current amendments to the Labour Code. The new Act would be submitted to the institutions provided for under the Constitution of Kuwait.

The Workers' members pointed out that one of the reasons why this case was on the agenda of this Committee was that there had been a complete failure by the Government to supply reports containing new information since 1992. Indeed, even in 1992, the Government representative had stated that his country had set up a committee in order to carry out a final study on the possibilities of drawing up a draft Labour Code, taking into account the observations of the Committee of Experts. That committee had finished studying the draft Code which had been submitted to the legislative authorities three years ago. The Government representative then had talked about a draft Labour Code which would be introduced to the competent authorities. The Workers' members expressed their concern as to the nature of this draft legislation which was why they considered that it should be submitted for examination before being adopted.

Referring to the various problems posed by the Labour Code, which were mentioned by the Committee of Experts in its observation, the Workers' members first of all wondered whether the new Labour Code would cover the workers currently excluded from the scope of the Labour Code or whether they would be dealt with by other legislation. Concerning the minimum requirements placed upon certain workers in order to establish trade unions, the Workers' members pointed out that under Convention No. 87 there could not be any doubt that bodies of people should be entitled, if they so wished, to set up a trade union. In relation to the requirement of a minimum residence period for non-Kuwaiti workers to join a trade union, this was again for the trade union to decide upon. It was not for the Government to tell trade unions who they could or could not recruit. The same argument was applicable for unions which wished to federate.

With regard to the general discrimination against workers who were not of Kuwaiti nationality, the Workers' members considered that the Government representative's argument that a substantial part of the workforce were foreign nationals was an argument as to why the Labour Code should be applied to them. Furthermore, it was their view that ILO assistance could be sought by the Government in resolving its problems, particularly with respect to foreign nationals. Finally, it was undesirable for a trade union's assets to be reverted to the Ministry of Social Affairs and Labour in the event of dissolution, since it implied the Ministry had been helping/financing trade unions prior to their dissolution.

The Workers' members concluded by hoping that the Government representative would seek the technical assistance of the ILO and that he would confirm that he would be able to send the draft Labour Code shortly for examination by the Office. The Workers' members also hoped that copies of other laws affecting the public sector and domestic workers, amongst others, would also be sent shortly.

The Employers' members referred first of all to the exclusion of certain workers from the scope of the Labour Code. Since the Government representative had stated that they were covered by other laws, they wished to be informed of what exactly these rules or regulations were in order to see whether sufficient protection was granted to them. They were also waiting for information in the Government's report on the issue of the minimum number of employers and workers required to establish associations, which the Government representative had indicated would be taken into account in the new Labour Code. They considered that the requirement for non-Kuwaiti workers of a minimum five-year period of residence in Kuwait before being able to join a union was an issue to be settled by the unions themselves. The denial of the right to vote and be elected of trade unionists who were not of Kuwaiti nationality also constituted excessive interference in the organizational freedom of association.

Consequently, the Employers' members felt that the Government should be called upon to report in detail on all the individual points raised in the Committee of Experts' observation; it should also, if possible, send a copy of the draft Labour Code and, if required, draw upon ILO technical assistance in this matter.

The Workers' member of New Zealand regretted the comments made by the Government representative of Kuwait which confirmed that his Government comprehensively controlled and systematically constrained any trade union activity. While Kuwaiti nationals generally were severely restricted in their ability to form and join unions, other groups, especially migrant workers, were singled out for even worse treatment. Along with Indian and Pakistani citizens, domestic workers were excluded from the Labour Code. Yet, domestic workers, almost all of whom were both migrants and women, were the most vulnerable of any group of workers. They were isolated in private homes and their passports were usually held by abusive employers. By denying them their freedom of association the Kuwaiti Government was in fact legitimizing the abuses that they faced. In this respect, the speaker referred to a report by a human rights group which recorded the plight of nearly 2,000 women who had taken refuge in their embassies after fleeing from Kuwaiti employers. Nearly all told stories of forced labour, non-payment of salaries, oppressive working conditions and rape. Yet, the authorities had not only failed to prosecute abusive employers but in some cases had actually returned women to such employers. Since the Government had failed to protect such workers from physical and sexual violence and at the same time denied them the right to freely associate and organize through a union to protect themselves, the speaker felt that the Committee should at the very least positively request the Government to accept technical assistance from the ILO or, alternatively, accept an ILO fact-finding mission. That was the very least it could do for the thousands of migrant domestic women workers for whom it should be trying to make some real change.

The Workers' member of India indicated that whenever private employers from Kuwait hired workers from foreign countries they confiscated their passports so that the workers could not complain. Whenever they complained, they were expelled to their native country without receiving any compensation. The workers were further not entitled to any compensation in case of an accident at the workplace. The Government of Kuwait refused to allow foreign workers, who were facing an abnormally difficult situation, to join trade unions. It further insisted on a requirement of a minimum five-year period of residence to join a trade union. In addition, they had no right to form a separate union. Finally, only Kuwaiti nationals could be elected to trade union office. However, there was no reason why migrant workers should not have a right to form a union; at least they should have the right to present their own grievances. The speaker appealed to the Kuwaiti Government to introduce legislation allowing migrant workers to enjoy freedom of association.

The Employers' member of Kuwait contended that the report referred to by the Workers' member of New Zealand contained mere allegations. Moreover, the Labour Code did not ban the right to strike; however, there were no restrictions on the right to strike in the oil sector, even though it was an important strategic sector of the State. He proposed to set up a special committee to investigate what had been said. He indicated that he was one of the members of the committee set up by the Government to draft a new Labour Code. However, any new law had to go through the constitutional channels which took time. According to what had been stated by the Ministry of Labour and Social Affairs, the draft law would soon be submitted to the legislative authority. It would then be discussed therein and it was up to the Parliament to decide when to promulgate the new Bill.

The Workers' member of Greece, referring to the intervention made by the Employers' member of Kuwait, stated that the Conference Committee was not a tribunal but an assembly carrying on a social dialogue at an international level. Kuwait was a rich country and if it did not apply Convention No. 87 this was because it did not have the political will to do so. The persons affected by the provisions concerned were foreign migrant workers who did not constitute a threat to the Government. The speaker recalled his personal experience as a migrant worker in Belgium where he belonged to unions whose members and leaders included foreign workers. However, they did not constitute a threat to the Belgian Government. Democratic countries accepted that foreigners have the right to exercise their trade union rights, as demonstrated by the fact that one of the leaders of a large German trade union was a Turkish national. Migrant workers should have the right to be treated in the same way as national workers and should be able to exercise the same trade union rights.

The Workers' member of Spain considered that the issue raised was not complicated. It was not special cases nor specific sectors that were being discussed here, but more generally the free exercise of trade union rights. The Government of Kuwait did not have the right to restrict freedom of association, as indicated by the Committee of Experts in its observation. It had the political and moral obligation of ensuring the respect of Convention No. 87, without any restriction, having recourse if necessary to the technical assistance of the ILO. The speaker agreed with the views expressed by the Workers' members according to which it would be appropriate to urge the Government of Kuwait to ensure respect of Convention No. 87.

The Government representative emphasized that they would respect human rights and spare no effort in attempting to guarantee those rights, particularly following the trials and tribulations of the invasion. He said Kuwait was a democratic State. Admitting several shortcomings, he thought they needed time. They were following the right path: they were serious in their wish to promulgate the new Labour Code; they were confident in making progress step by step. He denied the allegations concerning domestic workers. Even though they do not have trade unions, Kuwait was a State ruled by law.

Referring to some speakers' suggestions that the Government seek the technical assistance of the ILO, the Government representative stated that the consultative multidisciplinary team visited Kuwait in December 1994 and made observations, which the Government noted carefully, concerning especially the new Labour Code. As for the right to strike, he repeated that there was no law in Kuwait restricting the right to strike. He assured that the opinions of the members of the Committee would be conveyed to the Government and that the Government would spare no effort to ensure the application of the Convention, at least most of it.

The Workers' members agreed with the Government representative that they were at the beginning of the road and stressed the length and difficulty of the road. The map was provided by the Committee of Experts. They repeated that it would be helpful if the draft laws were submitted to the Office before their adoption, rather than afterwards. They hoped that the Government found the discussion useful.

The Employers' members pointed out that it was up to the governments whether they would first send a draft law for examination or whether they would adopt a law and then make a report upon it. They again hoped for changes in line with the comments of this Committee and also of the Committee of Experts.

The Employers' member from Kuwait noted that there was no provision in the Constitution of the ILO obliging member States to submit their draft Labour Codes before their adoption.

The Workers' members clarified that the suggestion was often made by the Committee of Experts for draft laws to be submitted to the Office. It was not a requirement and governments were free to take or leave the service offered by the ILO.

The Committee took note of the comprehensive statement of the Government representative in respect of the issues raised in the report of the Committee of Experts in the discussion that followed thereafter. While the Committee also took note of the assurance of the Government representative in regard to the respect for human rights and the will to guarantee workers' rights, it regretted that the Committee of Experts had been unable to note any progress in the application of this important Convention for want of any new information. It recalled that the Committee of Experts was concerned about the substantial divergencies between the national legislation and the Convention in particular in regard to the universality of coverage of workers by the Labour Code, free and uninhibited formation of trade unions and affiliation to federations, and the autonomy of unions in regard to organizational and internal affairs.

The Committee recalled the earlier reported effort at the establishment of a revised Labour Code and expressed disappointment at the absence of any information on progress in regard to the matter. The Committee urged the Government to demonstrate its will to conform to Convention No. 87, especially by scrapping the present exclusions of certain categories of workers from the scope of the Labour Code, especially domestic workers, who are mostly women, requiring special protection, removing the restrictions on formation of unions and desisting from intervening in the financial and other internal affairs of unions.

The Committee also called upon the Government to furnish a full report to the Committee of Experts in respect of harmonization of the national Labour Code and practice with the provisions of Convention No. 87 and in respect of other collateral laws which contain provisions reflecting substantial conformity with the Convention. The Committee further expressed the hope that the Government might like to draw upon the expertise available in the ILO, including through further technical assistance especially to ensure that the revised Labour Code conforms to the Convention.