Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee takes note of the Government's report.

The Committee has been referring for several years to a number of discrepancies between the Labour Code (Law No. 38 of 1964) and the Convention:

- there must be at least 100 workers to establish a trade union (section 71 of the Law) and at least ten employers to form an association (section 86);

- non-Kuwaiti workers must have resided five years in Kuwait before they may join a trade union (section 72);

- at least 15 members must be Kuwaiti before a union may be established (section 74);

- a certificate of good reputation and good conduct must be obtained before a person may join a trade union (section 72);

- a certificate must be obtained from the Minister of the Interior stating that he has no objection to any of the founder members before a trade union may be established (section 74);

- not more than one trade union may be set up for a given establishment or activity (section 71);

- trade unionists who are not of Kuwaiti nationality may not vote, except to elect a representative whose only right is to express their opinions to the trade union leaders (section 72);

- the authorities have wide powers of supervision over books and records (section 76);

- the assets of the trade union revert to the Ministry of Social Affairs and Labour in the event of dissolution (section 77);

- trade unions are prohibited from engaging in any political or religious activity (section 73);

- trade unions may federate only if they represent the same occupation or industries producing similar goods or providing similar services (section 79);

- organisations and their federations are prohibited from forming more than one general confederation (section 80).

In its previous observation, the Committee noted that a draft Labour Code repealing several provisions which are contrary to the Convention was being prepared, namely:

- sections 71 and 74 laying down that there must be at least 100 workers to establish a trade union and 15 Kuwaiti workers before a union may be established;

- section 72 granting non-Kuwaitis the right to join trade unions after five years' residence;

- section 72 laying down that all workers must deposit a certificate of good reputation and good conduct before being allowed to join a trade union;

- section 74 requiring that a certificate must be obtained from the Minister of the Interior stating that he has no objection to any of the founder members before a trade union may be established;

- section 77 establishing that the assets of the trade union revert to the Ministry of Social Affairs and Labour in the event of dissolution;

- section 73 prohibiting trade unions from engaging in any political or religious activity.

The Committee notes with regret that the Government's report contains no information on the adoption of these provisions. It requests the Government to indicate in its next report the measures taken to bring its legislation into conformity with the Convention on these points.

Furthermore, the draft Code still contains a number of provisions which contravene the Convention on the following points:

- trade union unity laid down by sections 71, 79 and 80 of the Labour Code, which authorise only a single trade union, a single federation for a given activity and a single national confederation of such organisations and federations;

- the prohibition imposed on foreign workers from voting or standing for election to trade union office, except to elect a representative to express their opinions to the trade union leaders (section 72 of the Labour Code);

- the wide powers of supervision of the authorities over the books and registers of a trade union (section 76 of the Labour Code);

- the restriction on the free exercise of the right to strike (section 88 of the Labour Code).

1. With regard to the single trade union system, in its last report, the Government indicates again that the purpose of such a structure is to avoid the dangers of proliferation of trade unions and to serve the interests of the workers.

The Committee can only recall that the principle set forth in Article 2 of the Convention, that workers should be able to constitute organisations of their own choosing, is not intended as an expression of support either for the idea of trade union unity or for that of trade union pluralism. If workers choose to group together in a single trade union system, legislation should not impose such a system but should allow pluralism to be possible in the future (in this connection, see paragraphs 136 and 137 of the General Survey of 1983 on Freedom of Association and Collective Bargaining). The Committee requests the Government to amend its legislation to ensure that workers, should they wish to do so, are able to set up unions outside the established trade union structure in order to safeguard their occupational interests.

2. As regards the prohibition imposed on foreign workers from voting or standing as candidates in trade union elections, except to elect a representative to express their opinions to the trade union leaders, the Government again indicates in its report that this provision is necessary because of the instability of foreign labour.

The Committee stresses that the right of workers' organisations to elect their representatives in full freedom (Article 3 of the Convention) is limited by the restrictions imposed on foreign workers by section 72 of the Labour Code, and that the legislation should be made more flexible in order to permit non-Kuwaiti workers to have access to or hold trade union office, at least after a reasonable period of residence in Kuwait (in this connection, see paragraphs 159 and 160 of the General Survey).

3. With regard to the wide powers of supervision of the authorities at all times over books and records of trade unions, in its last report the Government explains that such supervision is confined to examining the management of trade union expenditure, including the subsidy paid by the Government, in the interests of the workers.

The Committee takes notes of this statement, but recalls that under Article 3 of the Convention, workers' organisations must have the right to organise their administration without any interference from the public authorities and that, accordingly, supervision of union finances should not normally go beyond a requirement for the organisation to submit periodic financial returns (see paragraph 188 of the General Survey).

4. With reference to section 88 of the Labour Code under which compulsory arbitration may be imposed at the request of one of the parties in order to settle a labour dispute and end a strike, in its report the Government explains that the purpose of this provision is to settle collective disputes as speedily as possible. The Government considers that, since the arbitration board is composed of a Chamber of the Court of Appeal, the equity of its decisions is guaranteed for all.

The Committee takes note of these statements, but recalls that the right to strike is one of the essential means available to workers' organisations for the promotion and protection of the interests of their members. It requests the Government to revise its legislation in order to ensure that compulsory arbitration with a view to ending a strike cannot be imposed except in the case of strikes in essential services in the strict sense of the term or in the event of acute national crisis.

The Committee therefore requests the Government to provide information in its next report on developments with regard to the draft Labour Code and on the measures under consideration to remove from the legislation any provision prescribing trade union unity, to enable foreign workers to participate in or stand for elections to trade union office, to limit the supervisory powers of the authorities in the management of trade union organisations and to remove the excessive restrictions imposed on the exercise of the right to strike.