Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Kuwait (Ratification: 2007)

Scope of application of the Convention. Migrant and domestic workers. In its observations concerning the application of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) in Kuwait, the Committee has noted that pursuant to section 99 of the Labour Law, the right to establish trade unions is restricted to Kuwaiti workers. Furthermore, Order No. 1 of 1964 subordinates the exercise of the right of migrant workers to join workers’ organizations to the possession of a valid work permit and a minimum of five years’ residence in the country. The Committee notes that these legal restrictions on the right to organize seriously impede the exercise by migrant workers of all rights enshrined in the Convention. Furthermore, the Committee has noted that domestic workers are excluded from the scope of the Labour Law and Law No. 68 of 2015 on Employment of Domestic Workers does not contain any provisions concerning the right to organize and collective bargaining. In its previous observation, the Committee had requested the Government to take all necessary measures to ensure the recognition of these rights for all migrant and domestic workers. It notes with regret that the Government does not indicate any measures taken in this regard, neither has it provided information on the way migrant and domestic workers exercise these rights in practice. In view of the foregoing, the Committee urges the Government to take all necessary measures, including legislative reform, to ensure the full recognition, in law and in practice, of the rights enshrined in the Convention for all migrant workers as well as for domestic workers. It also requests the Government to provide information on the way in which these workers exercise in practice the rights set out in the Convention, including information on trade union organizations established and collective agreements in force.

Articles 1 and 2 of the Convention. Adequate protection against acts of anti-union discrimination and interference. In its previous observations, the Committee had noted that beyond the general prohibition of anti-union dismissals, national legislation does not provide for effective procedures and dissuasive sanctions against acts of anti-union discrimination and interference. It had therefore urged the Government to take all the necessary measures to bring national legislation into conformity with the Convention. The Committee notes with regret that the Government does not indicate any measures taken in this regard. Therefore, it once again urges the Government to take all necessary measures to ensure that the legislation provides for the prohibition of all acts of anti-union discrimination and interference forbidden by the Convention, and to ensure that there are redress mechanisms that provide adequate protection, including effective procedures and dissuasive sanctions.

Article 4. Promotion of collective bargaining. Compulsory arbitration. In its previous observations, the Committee had noted that section 131 of the Labour Law gives the Ministry the power to intervene in a collective labour dispute without the request of any of the parties, and eventually refer the dispute to conciliation or arbitration while section 132 bans strikes during conciliation or arbitration proceedings initiated by the Ministry. The Committee had requested the Government to amend these provisions. The Committee notes that the Government indicates that in practice, it has never intervened in any dispute out of respect for the provisions of the Convention and it shall continue to do so in the future, except if the parties to a dispute request its intervention. The Committee once again recalls in this regard that compulsory arbitration in the framework of collective bargaining is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term (services whose interruption would endanger the life, personal safety or health of the whole or part of the population), and acute national crises. While noting the Government’s indication that the above-cited provisions are never applied in practice, the Committee recalls that State parties are required to ensure the conformity of their laws with the Convention. Therefore, it once again urges the Government to take all the necessary measures to amend sections 131 and 132 of the Labour Law, as well as other provisions on compulsory arbitration, to ensure their full conformity with the abovementioned principles and to provide information on any developments in this respect.

Promotion of collective bargaining. Application of the Convention in practice. In its previous observation, the Committee had requested the Government to provide information on its concrete measures to promote collective bargaining and to indicate the collective agreements concluded. The Government reports that it always encourages collective bargaining and provides the list of eleven collective agreements concluded during the 2014–20 period. The Committee notes that all these agreements concern the petroleum sector. Recalling that Article 4 of the Convention requires Governments to take measures to encourage and promote the full development and utilization of machinery for collective bargaining, the Committee requests the Government to indicate the concrete measures it has taken to promote and encourage collective bargaining in all economic sectors. It also requests the Government to continue providing information concerning the number of collective agreements concluded, specifying the sectors and the number of workers covered.