Observation (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

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

Autre commentaire sur C087

Observation

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Article 2 of the Convention. Migrant workers. In its previous comments, the Committee had requested the Government to recognize the right of migrant workers to establish and join organizations of their own choosing. The Committee notes that the Government indicates that the Labour Law No. 6 of 2010 does not prohibit migrant workers from establishing or joining organizations, and that the conditions set for admission of migrant members to trade unions in Ministerial Order No. 1 of 1964, namely holding a work permit and having resided in the country for at least five years, are not discriminatory but merely organizational. The Government further indicates that the work permit shows that the worker is lawfully residing in the country and specifies the type of occupation on the basis of which a request to join the union is made. The Committee recalls in this regard that it had already noted that section 99 of the Labour Law of 2010 limits to Kuwaiti workers the right to establish a trade union organization. It further recalls once again that the right of workers, without distinction whatsoever, to establish and join organizations of their own choosing implies that anyone residing in the territory of a State, whether or not they have a residence permit, benefits from the trade union rights provided for by the Convention, without any distinction based on nationality or the absence thereof. Therefore, the Committee urges the Government to: (i) amend section 99 of Labour Law of 2010 by removing the condition of Kuwaiti nationality for establishing a trade union organization; (ii) repeal the provisions of Ministerial Order No. 1 of 1964 requiring migrant workers to have a work permit and to have resided in the country for five years in order to join a trade union organization, and; (iii) remove any other legal or practical impediment to the free exercise of the right of migrant workers to establish or join organizations. The Committee further requests the Government to keep it informed of the measures taken in this regard.

Domestic workers. The Committee recalls that the rights of domestic workers under the Convention are not recognized in Kuwait, as on the one hand, pursuant to section 5 they are excluded from the scope of the Labour Law, including its provisions on freedom of association; and on the other hand Law No. 68 of 2015 on Employment of Domestic Workers does not contain any provisions recognizing the right of domestic workers to organize. The Committee notes with regret that despite its repeated requests in this regard, the Government has not taken any measure to recognize the rights of domestic workers under the Convention. It therefore once again urges the Government to take all the necessary measures, including through revising the legislation, to ensure the full recognition in law and in practice of the right of domestic workers to establish and join organizations. It requests the Government to indicate the measures taken or envisaged in this regard.

Article 3. Financial administration of organizations. In its previous comments, the Committee had requested the Government to amend section 104(2) of the Labour Law that prohibits trade unions from using their funds in financial, real estate and other forms of speculations. The Committee notes that the Government once again indicates that this provision regulates the activity of trade unions with the aim of protecting them from possible negative consequences of the indicated investments. In this regard, the Committee once again recalls that legislative provisions that restrict the freedom of trade unions to administer, utilize and invest their funds as they wish for normal and lawful trade union purposes, including through financial and real estate investments, are incompatible with Article 3 of the Convention, and that the control exercised by public authorities over trade union finances should not go beyond the requirement for the organization to submit periodic reports. It therefore once again urges the Government to review section 104(2) of the Labour Law in order to allow trade unions to freely administer and invest their funds in accordance with Article 3 of the Convention.

Overall prohibition on trade union political activities. Since 2006, when it first made comments on the drafts of what later became the 2010 Labour Law, the Committee has requested the Government to eliminate the total ban on political activities of trade unions that is enshrined in section 104(1) of this law. It notes with regret that the Government has not taken any measures in this regard and merely repeats its previous indications. The Committee recalls that the right of trade unions to organise their activities includes the rights to organize protest action, as well as certain political activities, such as expressing support for a political party considered more able to defend the interests of members (see 2012 General Survey on the fundamental Conventions, paragraph 115) Sweeping bans on trade union political activities give rise to serious difficulties with regard to the exercise of these rights and are therefore incompatible with the Convention. On these grounds, the Committee urges the Government to revise section 104(1) of the Labour Law to allow for legitimate political activities of trade unions and to keep it informed of the measures taken in this regard.

Compulsory arbitration. In its previous comments, the Committee had requested the Government to amend sections 131 and 132 of the Labour Law. Section 131 gives the Ministry of Labour the power to intervene in a labour dispute without the request of any of the parties and eventually to submit the dispute to conciliation or arbitration. Section 132 prohibits strikes during conciliation or arbitration proceedings initiated because of the intervention of the Ministry. The Committee had recalled that compulsory arbitration to end a collective labour dispute and a strike is only acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in disputes concerning public servants exercising authority in the name of the State, or in essential services in the strict sense of the term – that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee notes the Government’s indication that in practice it has never intervened in any dispute out of respect for the principles enshrined in the Convention, and that it will continue to follow this approach of refraining from intervention unless the parties to the dispute request its intervention. While duly noting this information, the Committee recalls the need to ensure the conformity of legislative provisions with the Convention, even when they are not applied in practice, and once again requests the Government to take the necessary measures to amend sections 131 and 132 of the Labour Law in light of the above and to keep it informed of the measures taken in this regard.

Dissolution of executive boards. In its previous comments, the Committee had requested the Government to amend section 108 of the Labour Law, which provides that an organization’s board of directors can be dissolved by judicial order, in case the board engages in an activity that violates the provisions of the Labour Law or “laws relevant to the preservation of public order and morals”. The Committee recalls that it had pointed out in this regard that the reference to the “laws relevant to the preservation of public order and morals” is too broad and vague and could lead to an application that hinders the exercise of the rights enshrined in the Convention. The Government indicates that the application of section 108 is not broad or vague and that any Ministry lawsuit seeking the dissolution of a board pursuant to section 108 should refer to the instances and aspects of the alleged violation whereupon the matter will be submitted to judicial examination. The Committee notes this information and recalls that while the organizations and their members are bound to respect the law of the land, the law of the land shall not be such as to impair the guarantees provided in the Convention. The dissolution of the executive board involves a serious risk of interference by the authorities, in particular as to the right of organizations to elect their representatives in full freedom. Furthermore, it may paralyse the activities of a trade union for some time. The Committee considers that authorizing dissolution of executive boards based on indeterminate references such as to “laws relevant to the preservation of public order and morals” provide an exceedingly broad basis for such intrusive measures. In light of the foregoing, the Committee once again requests the Government to take the necessary measures to revise section 108 of the Labour Law, in order to make it compatible with the guarantees provided in the Convention. In the meantime, it requests the Government to provide information on any cases of application of section 108 in practice, and communicate the judicial decisions issued on its basis.

Articles 2 and 5. Limitation to a single confederation. In its previous comments, the Committee had requested the Government to amend section 106 of the Labour Law which provides that “there should not be more than one general union for each of the workers and employers”. The Government indicates in this regard that the Labour Law of 2010 resulted from consultation and agreement between the Government and the social partners and that section 106 aims at protecting the unity of the labour movement in Kuwait. The Committee recalls in this respect that although the Convention does not make trade union diversity an obligation, it does require this diversity to remain possible in all cases and at all levels. Although it is generally to the advantage of workers and employers to avoid proliferation of competing organizations, trade union unity directly or indirectly imposed by law is contrary to the Convention (see 2012 General Survey on the fundamental Conventions, paragraph 92). Therefore the Committee once again requests the Government to take the necessary measures to amend section 106 of the Labour Law so as to ensure the right of workers and employers to establish organizations of their own choosing at all levels, in particular the possibility of forming more than one confederation (general union). It further requests the Government to provide information on any developments in this respect.

The Committee is raising other matters in a request addressed directly to the Government.