Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

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

The Committee notes the Government's report. It recalls that it has commented for many years on the need to repeal or amend the following provisions of the Labour Code (Act No. 38 of 1964), which are contrary to the Convention.

Article 2 of the Convention

-- The exclusion from the scope of the Code, and thus from the protection afforded by the Convention, of state and public service workers, fixed-term workers employed by the State under the regulations concerning the employment of Indian and Pakistani citizens, domestic workers and employees holding similar positions, and seafarers (section 2 of the 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 requirement of five years' residence in Kuwait for non-national workers before they may join a trade union, and the requirement that a certificate of moral standing and good conduct be obtained in order to join a trade union (section 72).

-- The requirement that a certificate be obtained from the Minister for the Interior stating that he has no objection to any of the founding members, before a trade union may be established, and the requirement that at least 15 members must be Kuwaiti in order to found a trade union (section 74).

-- The prohibition to establish more than one trade union per establishment or activity (section 71).

Articles 5 and 6

-- 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 prohibition for organizations and their federations to establish more than one general confederation (section 80).

-- The single trade union system established under sections 71, 79 and 80, read together.

Article 3

-- The ban on the right to vote and to be elected for unionized workers not of Kuwaiti nationality, except to elect a representative having the right only to voice their opinions before the union officers (section 72).

-- The prohibition on trade unions from engaging in any political or religious activity (section 73).

-- The wide powers of supervision of the authorities over trade union books and registers (section 76).

-- The reversion of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution (section 77).

The Committee again urges the Government to indicate in its next report the measures taken to bring the provisions of the legislation mentioned above into conformity with the requirements of the Convention and recalls the possibility of ILO assistance, if necessary, in the drafting of its legislation.

Noting the Government's reference to the draft law to modify the Labour Code (Act No. 38 of 1964), the Committee recalls in this respect that its earlier comments dealt with the discrepancies between the draft law and the Convention in respect of restrictions on the right of all workers and employers, whether they be nationals or foreigners, public servants, workers, domestic workers or seafarers, to establish professional organizations of their own choosing for the defence of their interests, in accordance with Article 2 of the Convention. The Committee had specifically highlighted the incompatibility of provisions associating numerical conditions and nationality in the establishment of a professional organization, as follows:

-- the requirement of at least ten Kuwaiti employers in order to form an association (section 101 of the draft law);

-- the requirement that at least 15 founding members must be Kuwaiti in order to establish a trade union (section 102(1) of the draft law).

The Committee also noted possibilities of interference on the part of the public authorities in trade union activities, as follows:

-- the requirement that a certificate of good conduct be obtained by each founding member from the Ministry of the Interior before a trade union may be established (section 103(e));

-- the reversion of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution (section 110).

The Committee hopes that the draft law will rapidly be adopted and promulgated. It again requests the Government to take the necessary measures in the near future to ensure that the legislation on which it has been commenting for several years is brought into conformity with the requirements of the Convention.