Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations made by the International Trade Union Confederation (ITUC) in communications received on 4 August 2011 and 31 August 2014, as well as the response from the Government to the first communication.

Articles 1 and 2 of the Convention. Protection against acts of anti-union discrimination and interference. The Committee had requested the Government to indicate any legislative provisions ensuring adequate protection against acts of anti-union discrimination and interference, the penalties applicable in cases of violation, as well as the measures taken or contemplated to that effect. The Committee notes that the Government indicates in its report that Kuwait’s Constitution provides for the principle of equality and non-discrimination based on the grounds of race, origin, language or religion (section 29), and sets out that no one may be compelled to join any association or union (section 43); and that the Labour Act provides that a worker’s service may not be terminated without justification or on the grounds of union activity (section 46). The Committee confirms its observation that, beyond these general provisions, national legislation does not provide for further concrete protection against acts of discrimination. The Committee recalls that this protection should prohibit not only dismissals but also other measures of anti-union discrimination, such as transfers, demotions and any other prejudicial acts, as well as acts of anti-union discrimination in taking up employment. The Committee further recalls that legislation should protect against all acts of interference, such as acts aiming to place workers’ organizations under the control of employers or employers’ organizations by financial or other means. The Committee emphasizes that legislation should make express provision for effective procedures and dissuasive sanctions to prevent and redress all acts of anti-union discrimination and to protect employers’ and workers’ organizations against interference by each other. The Committee requests the Government to take any necessary measures to ensure that the legislation provides for the prohibition of all acts of anti-union discrimination and interference forbidden by the Convention, as well as redress mechanisms to ensure adequate protection, including effective procedures and dissuasive sanctions, in accordance with the abovementioned principles.

Article 4. Collective bargaining and compulsory arbitration. The Committee had noted in its previous comments that under sections 131–132 of the Labour Act, the ministry may intervene in a dispute without being asked to do so by any of the disputing parties, to bring about an amicable settlement of the dispute, and may also refer the dispute to the Conciliation Committee or the Arbitration Panel, as it deems appropriate. The Committee recalls 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. The Committee had requested the Government to take the necessary measures to amend Labour Act in conformity with these principles. The Committee notes that the Government states in its report that the intervention under section 131 is an optional measure by the ministry, which has not been used so far. The Committee emphasizes that, even if optional, the provision unduly affords the ministry discretion to provide for compulsory arbitration beyond the acceptable cases previously mentioned. The Committee requests the Government to take the necessary measures to amend sections 131 and 132 of the Labour Act, as well as other provisions on compulsory arbitration concerned, to ensure their full conformity with the abovementioned principles, and to provide information on any developments in this respect.

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