Observation (CEACR) - adoptée 1992, publiée 79ème session CIT (1992)

The Committee takes note of the Government's statement in its report that this Convention has made an effective contribution to strengthening freedom of association and the right to organise, developing trade union activities and directing freedom of association towards its goals of protecting workers' rights and improving working conditions. The Government adds that the draft Labour Code takes account of the Committee's observations by including all the provisions of the Convention except those that run counter to national security.

The Committee recalls that for several years it has been drawing attention to a number of discrepancies between the Labour Code (Act No. 38 of 1964) and the Convention, in particular:

(1) the prohibition on establishing more than one trade union for a given establishment or activity and the membership requirement of at least 100 workers in order to establish a trade union (section 71 of the Act) and ten employers to form an association (section 86);

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

the prohibition on organisations and their federations from forming more than one general confederation (section 80);

the system of trade union unity instituted by sections 71, 79 and 80 read together;

(2) the requirement that non-Kuwaiti workers must reside in Kuwait for five years before joining a trade union; the requirement that a certificate of good reputation and good conduct must be obtained in order to join a union; the denial of the right to vote and to be elected of trade unionists who are not of Kuwaiti nationality, except to elect a representative whose only right is to express their opinions to the trade union leaders (section 72);

(3) the prohibition on trade unions from engaging in any political or religious activity (section 73);

(4) the requirement 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; and the requirement that at least 15 members must be Kuwaiti before a union may be established (section 74);

(5) the wide powers of supervision of the authorities over trade union books and records (section 76);

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

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

With regard to the system of trade union unity, 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 1983 General Survey on Freedom of Association and Collective Bargaining). The Committee requests the Government to amend its legislation to ensure that workers, should they so wish, are able to set up unions outside the established trade union structure in order to safeguard their occupational interests.

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 Committee stresses that the right of workers' organisations to elect their representatives (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).

With regard to the wide powers of supervision of the authorities at all times over trade union books and records, the Committee recalls that under Article 3 of the Convention, workers' organisations should 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 that the organisation submit periodic financial returns (see paragraph 188 of the General Survey).

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, the Committee recalls that the right to strike is one of the essential means available to workers' organisations promote and protect their members' interests. 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 an acute national crisis.

In its previous observation, the Committee noted that a draft Labour Code repealing several provisions contrary to the Convention (sections 71, 72, 73, 74 and 79) was being prepared. Since the Government's report confirms that the above draft takes the Committee's observations fully into account, the Committee asks the Government in its next report to provide information on the status of the draft Labour Code and on the measures it envisages to:

- remove from the legislation all provisions institutionalising trade union unity;

- enable foreign workers to vote and to stand as candidates in trade union elections;

- remove the prohibition on trade unions from engaging in any political activity;

- limit the powers of supervision of the authorities over the establishment and the internal management of trade unions;

- remove the measures providing for the reversion of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution; and

- remove the excessive restrictions on the exercise of the right to strike.

The Committee hopes that the Government will do its utmost to take the necessary measures in the very near future.

The Committee is addressing a direct request to the Government concerning another subject.

[The Government is asked to supply full particulars to the Conference at its 79th Session.]