Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Kuwait (Ratification: 1961)

Individual Case (CAS) - Discussion: 2000, Publication: 88th ILC session (2000)

A Government representative, referring to the Committee of Experts' comments, stated that his country had been a democracy for almost 300 years. Its tenet was equality and social justice and was founded on the principles of Islam. He also noted that the Constitution of Kuwait was based on international Conventions and that Kuwait was therefore committed to complying with its obligations under those instruments. He explained that the delays in drafting the new legislation were due to the fact that it was extremely detailed. The draft text was in fact being studied by various committees, who were examining it in depth in view of the comments received from all groups. The new law would eliminate the requirement that a particular number of workers or employers was needed to form workers' or employers' organizations. This amendment was evidence of the Government's commitment to the principles of Convention No. 87. The Government representative indicated that he had a long list with him of all the changes made in the draft text. While he did not wish to take up the Committee's time by reading out this list, he assured the Committee that the draft text was in accordance with the Committee of Experts' comments. In July 1999, new elections had been held for the Kuwaiti National Assembly following a protracted election campaign. In the interim, Kuwait had benefited from an ILO mission which had provided technical assistance on the provisions in the draft law, including principles established in international Conventions and removing provisions from the draft text that were not in conformity with those Conventions. The draft law would soon be presented to the National Assembly for adoption. The Government representative indicated that Kuwait was proceeding in a transparent manner and believed that his Government's efforts would benefit Kuwaitis, noting that Kuwaiti society enjoyed true democracy, freedom of the press, equality and genuine separation of powers. Kuwait had improved the situation of domestic workers and national legislation and now allowed these workers to form trade unions. This change had been noted by the International Confederation of Free Trade Unions (ICFTU), who had observed that migrant workers in Kuwait had joined unions. In fact, migrant workers constituted one-third of the membership in such trade unions. He explained that migrant workers were twice as numerous as Kuwaitis and asked the Committee to take the unique composition of Kuwait's population into account, pointing to the number of migrants and the diversity of cultures and religions in his country.

The Worker members noted that it was not the first time that the Committee examined the question of the application of Convention No. 87 by Kuwait. It had in fact examined this case on several occasions in the beginning of the 1980s and furthermore in 1992, 1995 and 1996. The long and detailed list of points raised by the Committee of Experts evidenced that freedom of association was subjected to severe restrictions in Kuwait. Additional violations of Convention No. 87 had been established both in law and in practice. Certain issues raised particular concerns: the quantitative requirements to be authorized to establish a trade union or an employers' association and the obligation to have at least 15 Kuwaiti members to form a trade union. This latter requirement had affected several sectors, such as the construction sector, where the major part of the workers were foreigners, making it impossible for them to unionize. They had also mentioned the discrimination against non-national workers who were required to have five years' residence in Kuwait before they could join a trade union. As approximately 80 per cent of the workers were of foreign origin, a large part of these workers were thus deprived of the freedom to associate. The Worker members also referred to the prohibition to establish more than one trade union per establishment or activity, as well as the wide powers of supervision of the authorities over trade union books and registers. These were just some pertinent examples which demonstrated that there was a series of legal provisions in Kuwait which were contrary to the provisions of the Convention. In 1996 the Government had assured the Committee that it intended soon to adopt a draft labour code which would abrogate the provisions which were contrary to the Convention and which contained guarantees for the exercise of freedom of association. In its report to the Committee of Experts, the Government referred to this draft law which thus had not yet been finally adopted. The Committee of Experts had also noted that several provisions of this text continued to be in contradiction with the Convention. This concerned in particular the quantitative requirements for establishing a workers' or employers' trade union and the discrimination based on nationality. In addition, the powers of the authorities both as regards the establishment and the dissolution of these organizations remained too extensive. There was a high risk of interference by the public authorities in the functioning of workers' organizations, as each founding member had to obtain a certificate of good conduct and, as in the event of a dissolution of a trade union, its assets reversed to the Ministry of Social Affairs and Labour. The Worker members shared the hope of the Committee of Experts that this draft law would soon be adopted and promulgated. The Worker members urged the Government, without further delay, to guarantee both in law and in practice to all workers and employers without any distinction, be they nationals or foreigners, and irrespective of their occupation, the entitlement to join the professional organizations of their choice so as to defend their interests. They also requested the Government to submit next year to the Committee of Experts, a detailed report on actual progress accomplished, and not only on the proposed legislative amendments.

The Employer members noted that this case had been before the Committee in the 1980s as well as in 1995 and 1996 with regard to the application of Convention No. 87. There was a long list of discrepancies in the national legislation, including restrictions on the freedom to establish employers' or workers' organizations as well as restrictions on their activities. The Employer members also stressed that whole groups were excluded from coverage under the national legislation and commented on the long residency requirement for foreign workers before they could join a trade union. Noting that Kuwait had a rather monopolistic trade union system, the Employer members also referred to possibilities of interference on the part of the public authorities in trade union activities. The Government representative had indicated that a draft law would be adopted which would eliminate these violations, which was also reflected in the Committee of Experts' comments. While the Government representative had declined to describe the changes made in the draft law to save the Committee's time, the Employer members noted that the text of the draft law would need to be examined by the Committee of Experts in any event and asked the Government representative to list at least one or two of the most important changes in his concluding statements. The Employer members noted that, given the high number of foreigners in the country, it was crucial to solve the problem of the manner in which foreign workers as well as employers could organize. If the Government representative did not wish to list the changes made by the draft text, the Employer members requested that he explain the legislative process and indicate precisely when the new law would be adopted. For the moment, the Employer members adhered to their opinion that the national legislation should be amended in many respects and urged the Government to effect these changes forthwith.

The Employer member of Kuwait referred to the specific composition of the population in Kuwait. As the Employer members had noted, Kuwait had a high proportion of foreigners, who constituted approximately 40 per cent of the population. However, he believed that Kuwait was absolutely convinced of the importance of the Convention, particularly because it was a democratic State that believed in democracy, freedom and equality. He noted that 130 nationalities were represented in the Kuwaiti population and that there were double the number of foreign nationals in comparison to Kuwaiti nationals. The Employer member noted that he had 100 workers in the small enterprise which he operated. Given the broad range of nationalities in his enterprise, he might have had five to ten trade unions in his company. He also pointed out that Kuwait was in the Middle East, with all the difficulties and instabilities that this entailed. If tensions arose, he would face intractable problems as an employer. Kuwait's situation and its unique population were important elements that the Committee should consider. Moreover, the fact that trade union rights were an extension of political rights in the purest sense should also be taken into account.

The Worker member of Greece considered that it was very surprising to hear the Government representative affirming that Kuwait was a country where equality reigned. This amounted to a statement that the Committee of Experts had been wrong. In the course of the discussion, it had been said that the country had had difficulties resulting from the presence of nationals from many different countries. Everyone knew, however, that Kuwait was a very rich country. Although it undoubtedly needed to attract a large number of women and men to work in the country, it was not entitled to depriving them of almost all their rights. It was further also incorrect to assume that a recognition of the freedom of association would entail the establishment of ten unions within the same enterprise. Furthermore, such an assertion constituted an acknowledgment of the absence of freedom of association in Kuwait. A country as wealthy as Kuwait had no excuse not to implement the fundamental principles in Convention No. 87. In conclusion, the speaker expressed the hope that, even if this case was not placed in a special paragraph, the Government of Kuwait should be invited to inform the Committee on progress made next year.

The Government representative of Kuwait disagreed with the comments of the Worker member of Greece that foreign workers in Kuwait remained in poor conditions. He characterized these as totally gratuitous allegations and cited the alliance of 31 countries which had helped Kuwait restore its sovereignty as proof that Kuwait was a democratic country that respected freedoms.

Responding to the Employer member's comments, he confirmed that he had a long list of changes to the draft law that took the observation of the Committee of Experts into account. While he was willing to list all the deletions to the national legislation and the innovations introduced by the draft law, he once again stated that he did not wish to take up the Committee's time and promised that his Government would expedite the adoption of the draft law. This would be a priority item for the new Parliament and next year he would be able to confirm that progress had been made to the Committee's satisfaction.

The Worker member of Greece declared to have taken note of the declaration by the Government representative according to which all the undertakings made by him today, would be fulfilled by next year. He reiterated his request that the Government next year provide the Committee with information on actual progress made.

The Worker members recalled that contradictions with Convention No. 87 had been established. They therefore urged the Government to take all necessary measures to ensure that national legislation and practice be brought into conformity with the Convention without any further delay. There were no excuses for a violation of this Convention, which reflected fundamental labour rights. They reiterated their request to the Government to submit next year to the Committee of Experts a detailed report on actual progress both in law and in practice.

The Employer members stated that, in light of the discussion, the Committee was compelled to note once again the considerable discrepancies that existed between Kuwaiti legislation and the provisions of the Convention. As in the past, the Committee must urge the Government to remedy the situation. It should request the Government to report on the adoption of the draft law and supply a copy so that the Committee could determine what changes had been made.

The Committee noted the statement made by the Government representative and the discussion which took place thereafter. It noted with regret that the Committee of Experts had been commenting for many years now on the need for the Government to eliminate the many divergences existing between the legislation and the Convention. In particular, the Committee of Experts had urged the Government to adopt legislation which would grant to all workers and employers, without distinction of any kind, whatever their nationality or their profession, the right to establish the organizations of their choice with a view to defending their occupational interests without undue interference from the public authorities. Noting the Government's previous indication that legislation would be drafted so as to ensure full conformity with the provisions of the Convention, the Committee expressed the firm hope that the Government's report due this year would indicate the concrete measures taken in law and practice as well as specific progress attained in this regard in order to ensure full compliance with the requirements of the Convention.

Individual Case (CAS) - Discussion: 1996, Publication: 83rd ILC session (1996)

The Government supplied the following information:

The Committee refers to the need to amend section 2 of the Labour Code (Act No. 38 of 1964) concerning the exclusion of certain categories of workers from the scope of the law.

The Ministry of Social Affairs and Labour has prepared a bill to repeal section (2) of Act No. 38 of 1964 concerning employment in the private sector. Under this draft legislation, the section will be replaced by another text which takes into consideration recent legislative developments in the field of labour, in accordance with international conventions ratified by the State of Kuwait. The Bill was submitted to and approved by the Council of Ministers, and is now undergoing other procedures which will be communicated to the ILO. Concerning the Committee's observations on sections 71, 72, 73, 74, 79, 80 and 86 of the Labour Act concerning employment in the public sector, these are taken into account in the new bill (section 12).

Section 100: Employers' and workers' organizations

The right to establish employers' organizations and the right of trade unions to organize shall be ensured, according to the provisions of this Act. The provisions of this section shall apply to employees in the public, oil and state sector except military personnel, police forces and the National Guard.

Section 101

Workers employed in the same enterprise, or in the same occupation or industry, or in similar or related professions, industries or occupations, shall have the right to associate in trade unions which defend their interests, seek to improve their material and social conditions and represent such workers in all matters related to them. Employers shall have the right to establish their federations for the same purpose, provided they include ten members or more.

Section 102

The following procedures shall be adopted when establishing workers' and employers' organizations:

(i) at least 15 Kuwaiti workers wishing to establish a trade union shall be required to establish a trade union, at least ten Kuwaiti employers wishing to establish an association shall be required to establish an association in order to hold the constituent general assembly of the two categories, provided they fulfil the legal conditions;

(ii) the constituent general assembly shall endorse the statutes of the organization, guided by the standard by-laws which shall be issued by the minister concerned;

(iii) the constituent assembly shall elect the board, according to the provisions of its statutes; there shall be no less than seven and not more than 21 members on the board.

Section 103

The elected board shall deposit, within 15 days of its election, the following documents with the Ministry concerned:

(a) a list of founding members, including their age, occupation, workplace, signed by each one of them;

(b) the minutes of the constituent assembly meeting during which the constitution of the organization was adopted and the election of the board took place;

(c) two copies of the organization's contribution;

(d) one copy of the minutes of the board in which the capacity of each member shall be indicated;

(e) an attestation by the Ministry of Interior of good conduct for each founding member;

(f) the name of the bank in which the organization's funds are deposited.

The organization shall be considered registered as from the date on which the above documents are deposited, and shall acquire its legal personality upon registration. The Ministry concerned should provide guidance and advice to the organization in order to remedy establishment procedures or to fulfil the conditions required for the establishment of such organizations.

Section 104

The constitution of the organization shall indicate the aims and objectives for which it was established, membership conditions, members' rights and duties; amount of contributions paid by members; mandates of the regular and extraordinary general assemblies; the number of board members, duration and scope of their mandate; procedures concerning the budget measures to amend the by-laws in the case of dissolution of the organization; the liquidation of its funds; maintaining records and books by the organization; basis of self-control measures. While establishing their constitution, the trade union organizations shall be guided by the standard by-laws issued by a decision of the Minister concerned.

Section 105

Workers and employers and their organizations, while enjoying the rights provided for in the previous chapter, shall respect the laws in force in the State, and shall exercise their activities within the limits defined in the statute of the organization.

Section 106

The Ministry concerned shall provide advice and guidance to workers' and employers' organizations concerning the proper application of the law and the way in which records and financial books shall be maintained; guidance shall be provided to avoid any deficiencies in data, provided that such procedures shall take place at the organization's headquarters and during working hours.

Section 107

Trade unions registered in accordance with the provisions of this chapter shall have the right to establish federations defending their joint interests.

Federations established in accordance with the provisions of this law shall have the right to establish a confederation among themselves.

The same procedures shall be applied in the establishment of a federation or confederation as in the case of trade unions.

Section 108

Federations and the confederation shall have the right to join Arab and international confederations when they consider that they have mutual interests; the Ministry concerned shall be notified within a week at the latest, after the acceptance of their affiliation, for registration and publication.

Section 109

A worker shall have the right to belong both to the enterprise trade union committee and to the trade union of that occupation.

Section 110

Employers' and workers' organizations may be dissolved by one of the two following means: voluntary dissolution by a decision of the general assembly according to the constitution of the organization; judicial dissolution by a ruling of the tribunal of first instance, at the request of the Ministry concerned, if the organization has committed an act considered as an infringement of the law or of its constitution; an appeal may be lodged and the ruling may be contested in accordance with the civil and trade laws.

The assets of the trade union, so dissolved, shall revert to the Ministry of Social Affairs and Labour.

Section 111

Penalties provided for under section 139 shall be applicable to every employer, or his representative, who terminates a worker or takes sanctions against or compels a worker to belong or not to a union, or withdraw from a union because of his involvement in trade union activities or in the legal implementation of trade union decisions.

In addition, a Government representative stated that since it became a Member of the ILO in 1961, Kuwait has tried to establish the foundations for peace and social justice in conformity with the objectives of the ILO. In effect, Kuwait had ratified a certain number of Conventions and among them the most important: Convention No. 87, concerning freedom of association, which the report of the Committee of Experts referred to in its second part, which contained a certain number of observations. He emphasized that Kuwait had not spared any effort to adopt the necessary measures to improve the situation of workers and to modify legislative texts. For example, Kuwait had established a supreme consultative committee, a tripartite body, to review the questions related to labour and workers. To promote fruitful cooperation with the ILO, the State of Kuwait had requested the Organization for assistance through a multidisciplinary team specializing in labour-related matters, particularly with respect to the disabled, cooperatives, and occupational safety and health, with the goal of obtaining its expert opinion on these matters. This took place in 1984 and 1994-95. The report of this group welcomed Kuwait's cooperation with the members of the group and contained a certain number of recommendations which had been taken into account. The Director-General of the ILO visited Kuwait at the beginning of this year in order to observe the situation of workers. In his report presented to the Conference at this session, the Director-General welcomed the improvement with respect to the protection of migrant workers and referred in particular to some decisions adopted by Kuwait to guarantee that protection. Furthermore, from 26 March to 1 April 1996, Kuwait used the services of a legal expert from the ILO, who examined the new draft Labour Code which modified the law in force and made observations so that the draft would be in conformity with the Conventions of the ILO. The expert wrote a report just before this Conference began indicating that the mission had been successful and that encouraging results had been achieved thanks to the attention paid to the issues by the responsible officials. The new draft legislation was undoubtedly an important new step compared to the previous legislation, taking into account the observations and comments of the Committee of Experts, and was in conformity with the Conventions of the ILO which was a concern to the Government. The Government expressed the hope that the draft legislation could be promulgated soon. In addition, the authorities have adopted some legislative texts which provide greater protection to workers. In this respect, the speaker referred to certain specific legislative provisions.

The Workers' members noted that the Committee of Experts have for a number of years provided this Committee with detailed lists of those aspects of Kuwaiti law, particularly of the Labour Code, Act No. 38 of 1964, which were in direct breach of the requirements of the Convention. With equal persistence the Committee has noted assurances from the Government concerning human and workers' rights; has recorded proposals, plans and work under way to amend the Labour Code; and has sought further information and urged concrete action. The Workers' members expressed extreme concern since this year this Committee was once again faced with almost the identical situation of the past years.

The Workers' members noted two developments which could, however, be recorded as indicating some small progress. First, there was the Director-General's Report indicating that as a result of technical assistance provided through a multidisciplinary mission in November 1994, the Government of Kuwait had made some changes to the treatment of migrant workers and had agreed to study others. Unfortunately, none of these changes dealt with the issues concerning freedom of association and the right to organize. These rights also seemed to be denied to domestic workers who were overwhelmingly women and migrant workers in Kuwait. The Workers' members noted that the second hint of progress was contained in the Kuwaiti Government's written reply to the observations of the Committee of Experts. Apparently, the proposed changes to the Labour Code, Act No. 38, had gone as far as being approved by the Council of Ministers and would take account of the observations on sections 71, 72, 73, 74, 79, 80 and 86 of the Labour Code. The Workers' members noted that this Committee must welcome all progress however small, but without details on the proposed changes to the sections cited, it was difficult to be confident of how much progress would be made. They expressed caution that the experience of this case should forewarn against false expectations.

The Workers' members enumerated the key points that had been repeatedly listed by the Committee of Experts as requiring change and evaluated them against the information provided by the Government of Kuwait:

- Prohibition against establishing more than one union for an establishment; the requirement that unions have 100 workers to register, and that there must be ten employers to form an association; the requirement that trade unions and federations only cover the same or similar occupations or industries; the requirement of only one general confederation; the system of trade union unity. These referred to sections 71, 79, 80 and 86 of the Labour Code. The Government has signalled changes to all four sections to bring them into accord with Convention No. 87. However, there were no details provided.

- Residency requirements of five years for non-Kuwaiti workers before joining a trade union; requirement for a certificate of good conduct and good reputation to join a union; and denial of the right to vote and to be elected for trade unionists who are not Kuwaiti nationals, except as a representative with the right only to express opinions (section 72 of the Labour Code). Again, amendment was promised.

- Amendment was also promised on the prohibition of trade unions against political or religious activity (section 73).

- Requirement for a certificate from the Minister of the Interior stating there was no objection to any founder member of a trade union. However, on the issue of the requirement of 15 Kuwaiti workers as a necessary precondition to establish trade unions - the new section 102, appeared to perpetuate that stipulation.

- The wide powers of supervision of authorities over trade unions and records (section 76). The Government did not propose to amend this provision and indeed it was reiterated in sections 103, 104, 106 and 110 of the draft law, as was the reversion of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution (section 77). The powers of supervision retained were extensive, oppressive and provided for significant state control and interference in trade union affairs.

- Similarly, the status quo remained with respect to the restriction on the right to strike (section 88).

- It was completely unclear from the Government's comments as to exactly how far the extension of the Labour Code would go and whether it would cover Indian and Pakistani citizens who were fixed-term workers; domestic workers and seafarers.

Overall it appeared that the law in Kuwait would remain extremely restrictive, with only a few initial points of convergence with the Convention. The Workers' members certainly recognized what appeared to be a small but definite opening of the door by the Government of Kuwait to changes to meet the requirements of the Convention. They strongly supported the recommendations of the Committee of Experts when it urged the Government to ensure that domestic legislation should give all workers and employers, without distinction whatsoever, whether they are nationals or foreigners, public servants, domestic workers or seafarers, the right to join occupational organizations of their own choice to defend their interest, including the right to strike, and for workers' and employers' organizations the right to join federations or confederations, to elect their representatives freely and to organize their management without interference from the public authorities in accordance with Articles 2, 3, 5 and 6 of the Convention. The Workers' members shared the view of the Committee of Experts when it urged the Government of Kuwait to make full use of ILO assistance in the drafting of legislation. Lastly, they would welcome a further report next year which hopefully would record actual progress and not only proposed changes.

The Employers' members recalled that this case had been examined by this Committee several times in the early 1980s and also in 1992, and then again in 1995. The long and detailed list of points by the Committee of Experts showed that there were considerable restrictions on freedom of association in the law and practice of Kuwait. They expressed special concern on: (1) numeric requirements in order to be allowed to set up a trade union and in order to be allowed to set up an employers' association; (2) restrictions as to the setting up of federations or confederations of employers' and workers' organizations, leading to a single union system which was certainly not in conformity with the requirements of freedom of association; (3) restrictions as to the extent to which trade union rights may be exercised by workers, restrictions such as, for example, a residence requirement for foreigners, the need to work for a certain period in a particular occupation; (4) the ban on political activity on the part of trade unions; (5) there was a large group of workers who were basically excluded from the scope of application of the Labour Code and therefore did not enjoy freedom of association to any degree whatsoever. Judging by the categories listed in the observation, one could safely state that a fairly large number of workers were in this particular situation.

The Committee of Experts in its report also touched briefly on the restriction of the free exercise of the right to strike. The report did not provide further details as to exactly what this restriction entailed. On this point, the Employers' members stated that no country guaranteed the absolute free exercise of the right to strike and that it was not called for in the Convention.

The restrictions enumerated above (1-5) were clear and unambiguous and therefore the Committee must deal with this matter. In 1995, the Government of Kuwait had already promised to this Committee that there would be change. Judging by this year's report of the Committee of Experts, the gap between national law and the requirements of the Convention had only narrowed very slightly, if at all. Nevertheless, the situation was now at a new stage since the Government representative had referred to efforts made at the national level to change the legislation in Kuwait, and the Government had been advised by an expert from the ILO in their endeavours to review and amend the legislation. The Employers' members welcomed the Government representative's statement that the Government of Kuwait intended to amend all important points as recommended by the Committee of Experts. However, according to the written information, provided they were not convinced that all the necessary changes were being made and, in some cases, the details necessary to be able to judge whether change had occurred or not were lacking. The assurances and promises of the Government representative should be reflected in the conclusions. The Government should submit a full report on measures which had been taken so far and measures which were planned for the imminent future, as well as copies of legal or draft legislation which was being or which had already been enacted. This Committee should not try to assess the progress today and should ask the Committee of Experts to carefully investigate the situation in order for this Committee to review the situation again in the near future. The Office could provide technical assistance to the Government to assist it in bringing its legislation into line with the terms of the Convention, and it was to be hoped that this could be done as quickly as possible. Since this problem had persisted for many years, the Employers' members urged the Government to take measures with considerable speed in order for the situation to be rapidly resolved.

The representative of the Secretary-General corroborated the information given by the Government representative and noted that the Government of Kuwait had requested special assistance from the ILO so as to revise the whole Labour Code, including the provisions which referred to the matters dealt with by Convention No. 87. Between 26 March and 1 April of this year, a technical assistance mission took place in Kuwait in extremely positive conditions. An ILO expert presented a draft of reforms with the cooperation of the International Labour Standards Department, which was submitted to the Government of Kuwait. The speaker was happy to indicate that the Government of Kuwait had accepted the suggestions, made by the Committee of Experts, contained in the last paragraph of the observation made on Convention No. 87.

The Workers' member of Turkey quoted the conclusions of this Committee on the same case in 1981. He expressed regret that, during the intervening 15 years, there had not been much progress, since this Committee had discussed almost identical problems in 1983, 1984, 1992 and 1995, with similar conclusions.

The speaker stated that the requirement of at least 100 workers to establish a trade union was, especially in Kuwait, paramount to denying the right of association. Last year, the Government representative stated that this requirement was for foreign workers only and that there were the additional requirements of a minimum of five years of residence in Kuwait, as well as obtaining a certificate of good reputation and conduct. The Government representative also had stated that foreigners from 138 countries comprised 80 per cent of the economically active population. The speaker observed that these restrictions meant the denial of the right of association to 80 per cent of the workforce.

The speaker stressed that the prohibition of establishing more than one trade union for a given establishment was in violation of the Convention. He noted that the Government representative, in 1983, had stated that, "the low population and the expansion of small enterprises are obstacles to the formation of trade unions at the establishment level. This is why in practical terms it is not possible for more than one trade union to be set up in the same enterprise." The speaker noted that it was difficult to reconcile this argument with the requirements of 100 workers with good conduct and five years of residence to establish a trade union for 80 per cent of the workforce.

With respect to the single trade union system in Kuwait, the speaker stressed that undoubtedly there was a violation of the Convention. He emphasized the importance of unity at the national and the international levels more than ever, in the face of the ongoing globalization process. In 1983, the Government representative tried to legitimize the single federation structure by claiming that "divergencies lead to struggle and have a harmful effect on the unity and solidarity of the working class". The same mentality or the same pretext was still valid today.

The speaker observed that the prohibition of trade unions from engaging in any political activity was another violation of the Convention. He noted that during last year's discussions, the Government representative acknowledged the existence of the prohibition and "wondered what the objectives of trade unions carrying out such activities would be". He stressed that there was no need here to explain the increasing necessity of the direct political activity and involvement of trade unions to safeguard and promote the rights of workers; and that the supervisory bodies of the ILO had many decisions concerning the political activity and actions of trade unions.

The speaker noted that the wide powers of supervision of the authorities over union finances had always been considered a violation of the Convention. It should be up to the competent bodies of the trade union itself to audit the finances of the union.

The speaker observed that in the event of dissolution, the trade union assets were handed over to the Ministry of Social Affairs and Labour. He stressed that the arguments of the Government representative on this matter, which were made on previous occasions in this Committee, were irreconcilable with the Convention and that it should be up to the trade union itself to decide on the fate of its property.

It was noted that with regard to the restrictions on the free exercise of the right to strike, the Committee on Freedom of Association and the Committee of Experts had, on many occasions, stated that, as long as they were peaceful, all kinds of industrial action were to be considered legitimate. The legislation in Kuwait did not comply with this principle. He agreed with the Committee of Experts concerning the comments on the denial of the right to organize of certain categories of employees. Lastly, he expressed the hope that there would be progress with respect to this case next year.

The Workers' member of the Netherlands recalled that the Government last year made a firm commitment to human and trade union rights, which was welcomed. The first proof of this commitment was a draft Labour Code, which was now, as the Government representative stated, in an important stage of development before the Council of Ministers. The speaker noted that, however, this draft had not been seen, and asked when exactly the law would come into force. In this connection, he repeated the Committee's request of last year that the Government consult the ILO before the proposed legislation was adopted. With reference to the large number of migrant workers in Kuwait, the speaker acknowledged that the situation was not easy and certainly not typical. Nevertheless, he observed that the solutions which the Government had sought in the past and presently, were not in line with the Convention. He noted that the Government wished to find solutions step by step, but that given the longevity of the case, he asked the Government representative to come forward with some credible progress. He recalled that some of the problems seemed to be less complex than others. For example, the five-year residence requirement, the right to vote and to be elected into trade unions - these elements could be left to the trade unions at this very moment and solved immediately. With respect to the pressing complex problems, the Government should at least take recourse to technical assistance of the ILO.

The Employers' member of Kuwait stated that the situation in his country was good and stable with respect to employment and workers. He certainly did not claim perfection - only God could be perfect. The interest Kuwait attached to comply with the ILO's international standards was demonstrated by a revised draft Labour Code. The social partners, Parliament and others debated this draft legislation. The speaker highlighted the social and economic consequences of the aggression perpetrated in 1990. It would have been fair if this Committee and the Committee of Experts had also referred to the latest positive developments and all of the improvements which affected the living and working conditions of workers in Kuwait, instead of limiting themselves to critical comments. For example, he mentioned the establishment of the tripartite superior consultative committee, which dealt with all issues related to labour and workers. The speaker referred to a law which was over 20 years' old now and had not been applied. The Director-General stated in the annual Report presented to the Conference, on the activities of the ILO, that Kuwait was improving the situation for migrant workers. Moreover, the same comments were made by the ILO legal expert who provided technical assistance to Kuwait with regard to the new draft labour legislation. According to this expert, the new draft law substantially changed the law currently in force. These were clear examples of how Kuwait always adopted a constructive attitude with respect to the ILO. Kuwait had enacted several laws and proposed draft legislation to be in line with the noble objectives of the International Labour Organization. The draft amendments to the Labour Code would be submitted to the competent authorities. This was necessary and in case the new Labour Code had not been enacted by next year, this would be due to the requirements of democracy and due process, since draft legislation must be placed before the legislative and executive bodies, etc. During this process, all of the observations made by the Committee of Experts would be taken into account.

The Government representative thanked all the speakers for their comments. With respect to Indian and Pakistani workers, the relevant text had existed since 1974. The said text had not been repealed but had not been applied for several years. The Government had presented a draft proposal to repeal this text. In addition, there have been ongoing contacts between the Government of Kuwait and the ILO concerning technical cooperation in various areas related to labour matters, particularly with respect to labour law. The speaker expressed the hope that the new draft law would soon be enacted once it had gone through the different legal channels and that it would be in conformity with the Convention.

The Workers' members emphasized the central importance of the autonomy of the trade union movement in Kuwait. They also stressed the importance of assuring that foreign workers in Kuwait had the right to belong to a trade union and a right to a meaningful voice in Kuwait, since the largest proportion of the workforce was not Kuwaiti, and thus, the vast bulk of the workers had no right to join an organization because they were foreign. They had no voice within the trade unions that did exist and they were not even permitted to advance grievances in their own name. The Workers' members looked forward to the legislation referred to, and urged the Government to make full use of ILO assistance in this respect. Lastly, concerning the views of the Employers' members on the right to strike, the Workers' members considered that since the matter was not central to the conclusion sought from the Committee, they saw no further need to pursue the matter at this time, and were comfortable with the views of the Committee on Freedom of Association and the Committee of Experts on this question.

The Committee noted the written and oral information provided by the Government of Kuwait. The Committee observed with regret that, for several years, the Committee of Experts had been requesting the Government to eliminate the many divergencies which existed between legislation and the Convention. The Committee particularly requested the Government to adopt legislation which would give all workers, without distinction of any kind, whatever their nationality or their profession, the right to establish the organizations of their choice with a view to defending their professional interests. The Committee took note of the assurances given by the Government concerning its desire to adopt, with the assistance of the ILO, a draft Labour Code in the near future, which would repeal several provisions which ran counter to the Convention, and would contain provisions guaranteeing the exercise of freedom of association. The Committee expressed the firm hope that the next report from the Government would indicate decisive and specific progress in the adoption of such legislation which would enable the full application of the Convention in law and in practice. It urged the Government to provide a detailed report on the measures envisaged and adopted in this connection.

Individual Case (CAS) - Discussion: 1995, Publication: 82nd ILC session (1995)

A Government representative of Kuwait indicated that the demographic composition of Kuwait was different from that of other countries in the world in that the economically active population was made up of 80 per cent foreigners who were from 138 different countries. This had a considerable influence on the country.

The Committee of Experts was asking for section 2 of the Labour Code (Act No. 38 of 1964) to be amended. However, the exclusions provided for in this provision did not imply that the workers mentioned therein were excluded from the law. They were instead covered by other Acts such as the Act on Public Services. A certain number of workers were governed by statutes under the Ministry of the Interior. As for the exclusions respecting contractual workers, he emphasized that they had not been applied for a long time. Indeed, the necessary measures had been taken recently to repeal that provision.

As regards the requirement of at least 100 workers in order to establish a trade union and ten employers to form an association, this was applicable to foreign workers who were in Kuwait for a certain period of time and who would return to their countries once their tasks had been completed. As to the number of employers necessary to form an association, this provision would shortly be amended. Concerning the requirements of having a minimum residence period of at least five years in Kuwait as well as obtaining a certificate of good reputation and conduct before being able to join a trade union, this was stipulated to ensure that there would be stability in trade union membership since non-Kuwaiti workers were not stable residents. The minimum number of 100 workers was quite small. Otherwise there would be trade unions with a very small number of workers from a given nationality. Regarding the prohibition on the establishment of more than one trade union for a particular establishment or activity (section 71), Kuwaitis in tens of thousands of establishments amounted to only 700,000 workers.

With regard to section 73, which contained a prohibition on trade unions from engaging in any political or religious activities, the Government representative wondered what the objectives of trade unions carrying out such activities would be. After all, freedom of religion and expression was guaranteed in Kuwait through newspapers and magazines. He considered moreover that the differences in the economic and social situations of various countries should be taken into account by the Committee when examining these issues. Concerning the devolution of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution, the Ministry gave support to trade unions in practice, which was why if a trade union was dissolved the assets quite naturally reverted to the Ministry. Finally, he asserted that there were no legal provisions which restricted the right to strike. Workers in the oil sector had gone on strike recently. Negotiations had taken place between the Government and trade union representatives further to which section 88 had been applied. As a result, the matter was submitted to a chamber of the Court of Appeal in which employers and workers were represented.

The speaker concluded by informing the Committee that a large number of observations concerning Convention No. 87 and other ratified Conventions had been taken into account in the current amendments to the Labour Code. The new Act would be submitted to the institutions provided for under the Constitution of Kuwait.

The Workers' members pointed out that one of the reasons why this case was on the agenda of this Committee was that there had been a complete failure by the Government to supply reports containing new information since 1992. Indeed, even in 1992, the Government representative had stated that his country had set up a committee in order to carry out a final study on the possibilities of drawing up a draft Labour Code, taking into account the observations of the Committee of Experts. That committee had finished studying the draft Code which had been submitted to the legislative authorities three years ago. The Government representative then had talked about a draft Labour Code which would be introduced to the competent authorities. The Workers' members expressed their concern as to the nature of this draft legislation which was why they considered that it should be submitted for examination before being adopted.

Referring to the various problems posed by the Labour Code, which were mentioned by the Committee of Experts in its observation, the Workers' members first of all wondered whether the new Labour Code would cover the workers currently excluded from the scope of the Labour Code or whether they would be dealt with by other legislation. Concerning the minimum requirements placed upon certain workers in order to establish trade unions, the Workers' members pointed out that under Convention No. 87 there could not be any doubt that bodies of people should be entitled, if they so wished, to set up a trade union. In relation to the requirement of a minimum residence period for non-Kuwaiti workers to join a trade union, this was again for the trade union to decide upon. It was not for the Government to tell trade unions who they could or could not recruit. The same argument was applicable for unions which wished to federate.

With regard to the general discrimination against workers who were not of Kuwaiti nationality, the Workers' members considered that the Government representative's argument that a substantial part of the workforce were foreign nationals was an argument as to why the Labour Code should be applied to them. Furthermore, it was their view that ILO assistance could be sought by the Government in resolving its problems, particularly with respect to foreign nationals. Finally, it was undesirable for a trade union's assets to be reverted to the Ministry of Social Affairs and Labour in the event of dissolution, since it implied the Ministry had been helping/financing trade unions prior to their dissolution.

The Workers' members concluded by hoping that the Government representative would seek the technical assistance of the ILO and that he would confirm that he would be able to send the draft Labour Code shortly for examination by the Office. The Workers' members also hoped that copies of other laws affecting the public sector and domestic workers, amongst others, would also be sent shortly.

The Employers' members referred first of all to the exclusion of certain workers from the scope of the Labour Code. Since the Government representative had stated that they were covered by other laws, they wished to be informed of what exactly these rules or regulations were in order to see whether sufficient protection was granted to them. They were also waiting for information in the Government's report on the issue of the minimum number of employers and workers required to establish associations, which the Government representative had indicated would be taken into account in the new Labour Code. They considered that the requirement for non-Kuwaiti workers of a minimum five-year period of residence in Kuwait before being able to join a union was an issue to be settled by the unions themselves. The denial of the right to vote and be elected of trade unionists who were not of Kuwaiti nationality also constituted excessive interference in the organizational freedom of association.

Consequently, the Employers' members felt that the Government should be called upon to report in detail on all the individual points raised in the Committee of Experts' observation; it should also, if possible, send a copy of the draft Labour Code and, if required, draw upon ILO technical assistance in this matter.

The Workers' member of New Zealand regretted the comments made by the Government representative of Kuwait which confirmed that his Government comprehensively controlled and systematically constrained any trade union activity. While Kuwaiti nationals generally were severely restricted in their ability to form and join unions, other groups, especially migrant workers, were singled out for even worse treatment. Along with Indian and Pakistani citizens, domestic workers were excluded from the Labour Code. Yet, domestic workers, almost all of whom were both migrants and women, were the most vulnerable of any group of workers. They were isolated in private homes and their passports were usually held by abusive employers. By denying them their freedom of association the Kuwaiti Government was in fact legitimizing the abuses that they faced. In this respect, the speaker referred to a report by a human rights group which recorded the plight of nearly 2,000 women who had taken refuge in their embassies after fleeing from Kuwaiti employers. Nearly all told stories of forced labour, non-payment of salaries, oppressive working conditions and rape. Yet, the authorities had not only failed to prosecute abusive employers but in some cases had actually returned women to such employers. Since the Government had failed to protect such workers from physical and sexual violence and at the same time denied them the right to freely associate and organize through a union to protect themselves, the speaker felt that the Committee should at the very least positively request the Government to accept technical assistance from the ILO or, alternatively, accept an ILO fact-finding mission. That was the very least it could do for the thousands of migrant domestic women workers for whom it should be trying to make some real change.

The Workers' member of India indicated that whenever private employers from Kuwait hired workers from foreign countries they confiscated their passports so that the workers could not complain. Whenever they complained, they were expelled to their native country without receiving any compensation. The workers were further not entitled to any compensation in case of an accident at the workplace. The Government of Kuwait refused to allow foreign workers, who were facing an abnormally difficult situation, to join trade unions. It further insisted on a requirement of a minimum five-year period of residence to join a trade union. In addition, they had no right to form a separate union. Finally, only Kuwaiti nationals could be elected to trade union office. However, there was no reason why migrant workers should not have a right to form a union; at least they should have the right to present their own grievances. The speaker appealed to the Kuwaiti Government to introduce legislation allowing migrant workers to enjoy freedom of association.

The Employers' member of Kuwait contended that the report referred to by the Workers' member of New Zealand contained mere allegations. Moreover, the Labour Code did not ban the right to strike; however, there were no restrictions on the right to strike in the oil sector, even though it was an important strategic sector of the State. He proposed to set up a special committee to investigate what had been said. He indicated that he was one of the members of the committee set up by the Government to draft a new Labour Code. However, any new law had to go through the constitutional channels which took time. According to what had been stated by the Ministry of Labour and Social Affairs, the draft law would soon be submitted to the legislative authority. It would then be discussed therein and it was up to the Parliament to decide when to promulgate the new Bill.

The Workers' member of Greece, referring to the intervention made by the Employers' member of Kuwait, stated that the Conference Committee was not a tribunal but an assembly carrying on a social dialogue at an international level. Kuwait was a rich country and if it did not apply Convention No. 87 this was because it did not have the political will to do so. The persons affected by the provisions concerned were foreign migrant workers who did not constitute a threat to the Government. The speaker recalled his personal experience as a migrant worker in Belgium where he belonged to unions whose members and leaders included foreign workers. However, they did not constitute a threat to the Belgian Government. Democratic countries accepted that foreigners have the right to exercise their trade union rights, as demonstrated by the fact that one of the leaders of a large German trade union was a Turkish national. Migrant workers should have the right to be treated in the same way as national workers and should be able to exercise the same trade union rights.

The Workers' member of Spain considered that the issue raised was not complicated. It was not special cases nor specific sectors that were being discussed here, but more generally the free exercise of trade union rights. The Government of Kuwait did not have the right to restrict freedom of association, as indicated by the Committee of Experts in its observation. It had the political and moral obligation of ensuring the respect of Convention No. 87, without any restriction, having recourse if necessary to the technical assistance of the ILO. The speaker agreed with the views expressed by the Workers' members according to which it would be appropriate to urge the Government of Kuwait to ensure respect of Convention No. 87.

The Government representative emphasized that they would respect human rights and spare no effort in attempting to guarantee those rights, particularly following the trials and tribulations of the invasion. He said Kuwait was a democratic State. Admitting several shortcomings, he thought they needed time. They were following the right path: they were serious in their wish to promulgate the new Labour Code; they were confident in making progress step by step. He denied the allegations concerning domestic workers. Even though they do not have trade unions, Kuwait was a State ruled by law.

Referring to some speakers' suggestions that the Government seek the technical assistance of the ILO, the Government representative stated that the consultative multidisciplinary team visited Kuwait in December 1994 and made observations, which the Government noted carefully, concerning especially the new Labour Code. As for the right to strike, he repeated that there was no law in Kuwait restricting the right to strike. He assured that the opinions of the members of the Committee would be conveyed to the Government and that the Government would spare no effort to ensure the application of the Convention, at least most of it.

The Workers' members agreed with the Government representative that they were at the beginning of the road and stressed the length and difficulty of the road. The map was provided by the Committee of Experts. They repeated that it would be helpful if the draft laws were submitted to the Office before their adoption, rather than afterwards. They hoped that the Government found the discussion useful.

The Employers' members pointed out that it was up to the governments whether they would first send a draft law for examination or whether they would adopt a law and then make a report upon it. They again hoped for changes in line with the comments of this Committee and also of the Committee of Experts.

The Employers' member from Kuwait noted that there was no provision in the Constitution of the ILO obliging member States to submit their draft Labour Codes before their adoption.

The Workers' members clarified that the suggestion was often made by the Committee of Experts for draft laws to be submitted to the Office. It was not a requirement and governments were free to take or leave the service offered by the ILO.

The Committee took note of the comprehensive statement of the Government representative in respect of the issues raised in the report of the Committee of Experts in the discussion that followed thereafter. While the Committee also took note of the assurance of the Government representative in regard to the respect for human rights and the will to guarantee workers' rights, it regretted that the Committee of Experts had been unable to note any progress in the application of this important Convention for want of any new information. It recalled that the Committee of Experts was concerned about the substantial divergencies between the national legislation and the Convention in particular in regard to the universality of coverage of workers by the Labour Code, free and uninhibited formation of trade unions and affiliation to federations, and the autonomy of unions in regard to organizational and internal affairs.

The Committee recalled the earlier reported effort at the establishment of a revised Labour Code and expressed disappointment at the absence of any information on progress in regard to the matter. The Committee urged the Government to demonstrate its will to conform to Convention No. 87, especially by scrapping the present exclusions of certain categories of workers from the scope of the Labour Code, especially domestic workers, who are mostly women, requiring special protection, removing the restrictions on formation of unions and desisting from intervening in the financial and other internal affairs of unions.

The Committee also called upon the Government to furnish a full report to the Committee of Experts in respect of harmonization of the national Labour Code and practice with the provisions of Convention No. 87 and in respect of other collateral laws which contain provisions reflecting substantial conformity with the Convention. The Committee further expressed the hope that the Government might like to draw upon the expertise available in the ILO, including through further technical assistance especially to ensure that the revised Labour Code conforms to the Convention.

Individual Case (CAS) - Discussion: 1992, Publication: 79th ILC session (1992)

A Government representative referred to the reasons why the Government had not been able to implement the Convention, and stated that the Government had started, on its return home last year, to look into the observations of the Committee of Experts. Kuwait had set up a committee in order to carry out a final study on the possibility of drawing up a draft Labour Code, in consultation with the General Federation of Kuwaiti Workers and the Chambers of Commerce and Industry, taking also into account the observations of the Committee of Experts. This committee had finished studying the draft Code which was being submitted to the legislative authorities. Labour relations had gone beyond Act No. 38 of 1964; workers had been able to enjoy their rights through bilateral negotiations and collective agreements which had been authenticated by the Ministry of Labour and Social Affairs, and had become a referral point for courts. Under section 13 of the Act, workers and employers have the right to organise. Another element clarified by this Act was the role of these organisations. The law recognises the right of workers to freedom of association and the right to organise, and therefore made trade unions legitimate and legal from the point of view of the law. The speaker emphasised that Kuwait had made great strides in developing labour relations and the trade union movement, as well as the protection of workers' rights and the improvement of conditions of work, in accordance with provisions of the Convention. The Ministry of Labour and Social Affairs no longer had wide powers of supervision. The Ministry was confined to give assistance that trade unions might require from the Government. The Ministry also had the right to control any activity which may be contrary to national law. As to the eligibility of non-Kuwaiti workers to hold trade union office, the text of the Act does not expressly prohibit them from being elected or from holding trade union office in accordance with Chapter 3, section 72. Concerning the system of a single trade union, in order to protect the rights of workers the Government had enabled workers to set up more than one trade union. In relation to workers' grievances, the settlement of labour disputes and the imposition of arbitration, he indicated that Act No. 38 provided that workers' complaints might be settled on a bilateral basis. The trade union is authorised to act on behalf of workers in accordance with this Act, but the Act is not applicable to employers' complaints against workers. The decisions of the arbitration body are final and binding. Since labour disputes are delicate and sensitive issues which require rapid resolution, they are dealt with by a subsidiary body of the court of appeals, referred to in section 88 of the Act, following fair and just procedures, in accordance with the Convention.

The Workers' members stated that this case had been discussed in the Conference Committee in 1981, 1982 and 1983. The Committee of Experts in its report referred to the Government's information to the effect that the Convention had helped to strengthen freedom of association and trade union organisation, develop union activities and orient trade union freedom towards its goals in terms of defending workers' rights; it also referred to a new draft Labour Code. However, since the legislative and practical position had not changed, the Committee of Experts recalled the current divergencies, including provisions on trade union monopoly, restrictions on union activities for foreign workers, supervisory powers of the authorities as to the functioning of union organisation and above all restrictions on the free exercise of the right to strike. The Workers' members also felt it necessary to express their view on the right to strike so as to maintain balance in the report and for the future work of the Committee, since the Employers' members spokesman had continually during the examination of individual cases mentioned this to explicate the Employers' attitude. The Workers' members repeated clearly and unequivocally their support for the Committee of Experts' interpretation of the right to strike, both as regards the right to strike in general, not only as concerned the way in which it was carried out, but also possibly limited. They considered the Experts had correctly applied working methods and principles referred to in paragraph 6 of their general report. The right to strike in principle and as it is practised under the law was an essential means of realising trade union freedom. It was also a basic ingredient of trade union freedom. The Committee of Experts' opinion was not new, and it had been known for many years; the Committee of Experts repeatedly confirmed it in its report. Their view was founded on case-law of the tripartite Committee on Freedom of Association and there was no reason to change the established views. Contrary to the Employers' members' spokeman's ideas, universality of standards does not allow selective interpretation of freedom of association and the elements making it up - including the right to strike - according to the political system or the economic or social situation of a given country. The Workers' members reiterated their position in the discussion of problems related to the exercise of the right the strike in Kuwait. Referring to the Government representative's statements that the Government was trying to improve the situation, and that a draft Code had been prepared, the Workers' members thought it necessary for the Government to transmit without delay information for examination by the Committee of Experts on all points mentioned in its report to the Office, so that the Conference Committee could follow developments and examine the case again next year.

The Employers' members recognised the extraordinary circumstances that the Government had faced in the past few months and appreciated the rapidness with which it had come back to this issue and had proceeded to submit a draft Code to the legislature. They considered that the Government should submit a copy of the draft legislation to the ILO in order for the Committee of Experts to have a better appreciation of the degree to which the requirements of the Convention were met. As regards the right to strike, they recalled their position that the finding of a detailed regulatory scheme relating to the right to strike is not appropriate under Convention No. 87 because the words "right to strike" do not appear in the text of the Convention. The Conference Committee, in deciding not to consider the controversial issue of the right to strike, simply did not address it and made clear that the instrument deals with "freedom of association and not the right to strike". The Employers' members recalled the remarks they had made in 1991 that many of the decisions and interpretations of the Committee of Experts were drawn from decisions of the Committee on Freedom of Association, and that the latter Committee was not limited to the words found in Conventions Nos. 87 and 98 and was in a position to espouse general principles. They therefore noted their reservation with respect to the right to strike and the Experts' findings, in particular that restrictions could not be placed in the case of strikes in the essential services in the strict sense of the term, which they considered going too far in terms of what Convention No. 87 contemplates. With the above-mentioned reservation, the Employers' members associated themselves with the comments of the Workers' members and hoped that the Government would soon be in a position to report that it is conforming with the requirements of the Convention.

A Workers' member of France stated that the case had been discussed for several years and referred to the situation of migrant workers, a large part of the workforce. Since restrictions on freedom of association concerned these workers, it might be considered that in Kuwait very few people could join a union. The very nature of political power was undemocratic; far from being democratic, the regime was feudal: promised amendments had not been made, migrant workers were subject to restrictions, compulsory service at will, and placed outside legislation. The Government should make it clear whether proposals for amendments would explicitly eliminate discrimination against foreign workers. As regards the right to strike, the speaker stated that it was part of international labour standards and any government which undertakes to observe the Convention must also observe the right to strike for all categories of workers.

A Government member of Germany associated himself completely with the previous speakers as regards the current case. On the other hand, his agreement on the conclusions which the Committee will adopt in this case did not extend to all aspects of the interpretation of the Convention advanced on various sides.

A Workers' member of Italy considered that Kuwait had made insufficient efforts to observe the Convention, although during recent events it promised to democratise and freedom of association was an essential part of this. Failing observance of the Convention, democracy was a long way from being realised. The role of unions was essential for reconstruction of the country on a more just social basis. Prohibition of political activities for unions contradicted their very political participation in liberation of the country. The majority of workers' dependants were migrants and their freedom of association was restricted if such workers could not join unions of their choice. As Kuwait had huge resources, the Government could adopt legislation in conformity with the Convention.

The Government representative emphasised that great progress had been made in his country, which has a legitimate Constitution approved by the people, under a democratic, and not fuedal, Government. General elections are scheduled for October 1992 for the people to choose their representatives in Parliament which will guarantee the legitimacy of the Government. As regards migrant workers, he stated that about half a million foreign workers had come back to Kuwait. Concerning the single trade union system, he indicated that there were several trade unions representing employees not only in banks or industries but also in ministries; foreign workers are also allowed to join these trade unions. He recalled his initial statement that there was no prohibition on affilation to trade unions, and also stated that there were people of 80 different nationalities in the country. Numerous strikes had been organised even in the public sector, and the Government did not intervene to stop these strikes or to arrest representatives of workers for acting in an undisciplined manner. The Government merely called on the two parties to attempt to settle the dispute. Numerous collective agreements had been signed to settle disputes that had been expressed through strikes. As to the role of supervision that the Government undertakes on trade union affairs, the Ministry of Labour and Social Affairs provides subventions to all representative associations, to trade unions and private voluntary organisations. While the Government supervises the use of this assistance, trade unions have every right to undertake any activities they wish. He declared that the Government would make every effort to submit sufficient information concerning the application of the Convention and to include the revision of the Labour Code among the priorities in the legislative authorities for reorganising the society of the country.

The Workers' members rather had the impression that legislation in general and more particularly the aspects touching directly or indirectly on the rights of migrant workers do not figure in the priorities of the Government.

The Committee noted the information supplied by the Government representative. It acknowledged the difficulties the Government had been meeting recently, but it felt bound to recall that the subject-matter had been a point of concern in the reports of the Committee of Experts for many years and it was disappointed on account of the Government arguing its case referring to a Law dating from 1964, although that Law had been taken fully into account by the Committee of Experts. On the other hand, the Committee was under the impression that progress seems to be made in bringing the legislation in the direction of full conformity with the Convention. In order that the Committee of Experts can make a full assessment of the situation, the Committee expressed its hope that the Government would send the copy of the draft Labour Code to the ILO and suggested the Government might ask the assistance of the Office in this respect.

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

Articles 2 and 3 of the Convention. Restrictions to the right to join unions and draw up union constitutions and rules. In its previous comments, the Committee had noted that Ministerial Order No. 1 of 30 September 1964 includes a model regulation to guide the formulation of union rules that contains union membership conditions incompatible with the Convention and had requested the Government to amend the Order to bring it into conformity with the Convention. The Committee notes that the Government reiterates its previous indications concerning the non-binding character of the model rules. The Committee is therefore bound to once again recall that regardless of their non-binding nature, model rules intended to serve as guidelines to trade unions should not include provisions that are incompatible with the requirements of the Convention. The Committee therefore urges the Government to amend model rules of Ministerial Order No. 1 of 1964 to ensure their full conformity with the Convention.

Application of the Convention in practice. The Committee recalls that after receiving observations from International Trade Union Confederation (ITUC) in 2011, alleging that public authorities had taken action to ban strikes and threaten workers participating in them in oil and public sectors, it had requested the Government to establish a legal framework recognising the right to strike. The Committee notes that the Government reiterates its previous indications concerning the nonexistence of a legal prohibition of strikes or of rules imposing penalties on peaceful strikers, and that it takes into consideration the Committee’s proposal in consultation with the social partners. In order to safeguard the legal certainty of workers who decide to have recourse to strike action, the Committee once again encourages the Government to establish, in consultation with the social partners, a legal framework recognizing the exercise of the right to strike; the Committee recalls that the Government may avail itself of the technical assistance of the ILO and requests it to provide information as to any development in this regard. In the meantime, the Committee requests the Government to ensure that those participating in legitimate peaceful strikes cannot be subject to sanctions, threats or other retaliation, as well as to provide information on the exercise of this right in practice, including the number and nature of strikes called, their sector of activity (in particular if concerning the oil sector or public sector workers not exercising authority in the name of the State), and any administrative or judicial investigations or procedures initiated or conducted in relation to strikes.

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

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.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the observations made by the International Trade Union Confederation (ITUC) in a communication received on 18 September 2017 which refers to the matters raised by the Committee below.

Articles 2 and 3 of the Convention. Restrictions to the right to join unions and to draw up union constitutions and rules. In its previous comments, the Committee had noted that Ministerial Order No. 1 of 1964 sets out conditions for trade union membership which are not compatible with the requirements of the Convention and had requested the Government to amend the model regulations for unions rules contained therein. The Committee notes the Government’s indication that the Labour Law of 2010 provides that trade union organizations are free to be guided by the model regulations issued by the Ministerial Order; consequently, the Public Authority for Manpower issued a number of guiding rules for organizations in order to help them formulate their constitutions and regulations without obliging them to be bound by their provisions. The Committee once again recalls that model rules intended to serve as guidelines to trade unions are acceptable provided that there is no obligation or pressure to accept them, and that, regardless of their non-binding nature, model rules should not include provisions that are incompatible with the requirements of the Convention. The Committee requests once again the Government to take all necessary measures to ensure that model rules of Ministerial Order No. 1 of 1964 are not binding in law or in practice, and to amend them so as to ensure their full conformity with the abovementioned principles.

Application of the Convention in practice. In its previous comments, the Committee had requested the Government to establish, in consultation with the social partners, a legal framework recognizing the exercise of the right to strike and ensuring that those participating in legitimate peaceful strikes cannot be subject to sanctions, threats or other retaliation. The Committee notes the Government’s indication that while the Labour Law does not contain any provisions preventing workers from going on strike or imposing penalties to strikers, the Government desires to undertake consultations with the social partners with regard to the establishment of a legal framework recognizing the exercise of the right to strike. The Committee requests the Government to provide information on the content and outcome of the consultations held with the social partners on the establishment of a legal framework recognizing the exercise of the right to strike. The Committee reminds the Government that it can avail itself of the technical assistance of the Office if it so wishes.

In its previous comments, the Committee had also requested the Government to promote the application of the Convention in the private sector and to provide information in this respect. The Committee takes due note of the Government’s indication that there are 14 trade union organizations and that a federation of private employees was established in June 2017.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the observations made by the International Trade Union Confederation (ITUC) in a communication received on 18 September 2017 referring to issues under examination by the Committee.

Article 2 of the Convention. Migrant workers. In its previous comments, the Committee had requested the Government to ensure the recognition of the right of migrant workers to establish and join organizations of their own choosing by repealing any restriction or requirement on account of work permit or time of residence. In this respect, the Committee takes note of the Government’s indication in its report that the Labour Law (2010) does not contain any section that prohibits migrant workers from establishing organizations or from joining the existing trade unions. The Committee recalls that in its previous observation, it had noted the Government’s indication that the right to establish organizations is not accorded to migrant workers due to the fact that their residence in Kuwait is temporary and ends at their contract’s expiration. As to the right to join unions, the Committee recalls that it had noted that the admission of non-Kuwaiti workers as trade union members is provided for by the Ministerial Order No. 1 of 1964, which requires them to hold a work permit and to have resided in the country for five years. In this regard, the Committee notes the Government’s indication that those requirements are merely organizational and are useful to determine if the workers concerned lawfully reside in the country and the type of occupation on the basis of which a request to join a trade union organization is made. The Committee observes that, according to the Central Statistical Bureau of Kuwait, approximately two-thirds of the population in Kuwait are non-Kuwaiti citizens. It further notes that according to statistics published on the website of the UN High Commissioner for Refugees (UNHCR), in 2010, there were at least of 93,000 Bidoons who were reportedly stateless people. The Committee recalls 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. The Committee once again requests the Government to take all necessary measures to ensure the recognition of the right of all migrant workers to establish and join organizations of their own choosing, repealing any restriction or requirement on account of work permit status or time of residence, and to provide information on any development in this respect.

Domestic workers. In its previous comments, the Committee had requested the Government to take all necessary measures to ensure the full recognition of the right of domestic workers to establish and join organizations. The Committee notes the Government’s indication that Law No. 68 of 2015 on domestic workers grants labour rights to domestic workers and aims to improve their social and economic situation. It further observes that, according to the Central Statistical Bureau of Kuwait, in 2016, 666,422 persons were employed as domestic workers (which represents around 16.5 per cent of the population). While noting that Law No. 68 of 2015 constitutes a first step towards improving the protection of domestic workers, the Committee observes that this legislation does not contain any provision explicitly granting them the right to establish and join organizations to further and defend their interest and rights. The Committee urges the Government to take all necessary measures to ensure the full recognition and the right of domestic workers to establish and join organizations. It requests the Government to indicate all measures taken or envisaged in this regard.

Civil servants. The Committee had previously requested the Government to provide information on trade union rights in the public sector. The Committee notes the Government’s indication that civil servants have the right to establish and join unions of their own choosing and that this right is guaranteed both in law and in practice. The Government reiterates that section 98 of the Labour Law covers civil servants and that there is no legislation that restricts or limits them from exercising full trade union rights. It transmits a list of trade unions set up in various Ministries and public institutions. The Committee takes due note of this information.

Maritime and oil sector workers. The Committee had previously requested the Government to provide information on the exercise of trade union rights in the maritime and oil sector. The Government refers to a list of trade unions in the maritime and oil sector supplied with its report. The Committee takes due note of this information.

Article 3. Financial administration of organizations. In its previous comments, the Committee had requested the Government to take the necessary measures to amend sections 104(2) and (3) of the Labour Law so as to bring it into conformity with Article 3 of the Convention. The Committee notes the Government’s indication that no restriction is imposed on the financial administration of trade unions. As concerns the prohibition on trade unions to use their funds in financial, real estate and other forms of speculations imposed by section 104(2) of the Labour Law, the Government indicates that the aim of this provision is to ensure the protection of union members from the negative consequences of such investments. The Committee 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 requirements for the organization to submit periodic reports. The Committee therefore once again requests the Government to take the necessary measures to amend section 104(2) of the Labour Law and to indicate all measures taken or envisaged in this respect. In respect of section 104(3) of the Labour Law, the Committee takes due note of the Government’s indication that this provision does not restrict trade unions from receiving money (donations and successions), but simply directs trade unions to inform the Ministry of the donations and successions received in order to verify the legitimacy of the source. The Committee understands that section 104(3) of the Labour Law does not indeed require the Ministry’s consent.

Overall prohibition on trade union political activities. In its previous comments, the Committee had requested the Government to take the necessary measures to revise section 104(1) of the Labour Law which prohibits trade unions from involvement in any political matters. The Government indicates that the involvement of trade unions in political issues is not one of the objectives for which trade unions are established. The Government reiterates that the trade unions’ aim is to defend the interest of workers and to improve their economic and social situation, while the objective of any political party is to fight for a policy. The Government also indicates that unions can always express their views on political issues of interest to their members without any interference. The Committee recalls that the development of the trade union movement and the increasing recognition of its role as a social partner in its own right means that workers’ organizations must be able to voice their opinions on political issues in the broad sense of the term and, in particular, to express their views publicly on a government’s economic and social policy. The Committee once again requests the Government to take the necessary measures to amend section 104(1) of the Labour Law so as to eliminate the total ban on political activities in keeping with the abovementioned principle and so as to explicitly ensure that union members are able to express their views on policy matters that may affect their interest. It further requests the Government to indicate all progress made in this regard.

Compulsory arbitration. The Committee had previously noted that the intervention by the Ministry in labour disputes pursuant to sections 131 and 132 of the Labour Law could lead to compulsory arbitration and the prohibition of strikes. Noting the willingness of the Government to examine these provisions in consultation with the social partners, the Committee had requested the Government to provide information on the results of such tripartite consultations. The Committee notes the Government’s indication that the aim of section 131 of the Labour Law is to grant intervention powers to the Minister in a case of a collective dispute. The Government points out that the exercise of this power is optional and not mandatory. It reaffirms that the Ministry has never intervened in any collective dispute and that it is committed to not intervening, unless the parties to the dispute request its intervention. The Committee once again recalls that in as much as compulsory arbitration prevents strike action (section 132 of the Labour Law), it is contrary to the right of trade unions to freely organize their activities. Compulsory arbitration to end a collective labour dispute and a strike is 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 the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee therefore once again requests the Government to take the necessary measures to amend sections 131 and 132 of the Labour Law so as to ensure their full conformity with the abovementioned principles, and to provide information on any developments in this respect.

Dismissal of executive boards. In its previous comments, the Committee had noted that section 108 of the Labour Law provides for the possibility to dismiss an organization’s board of directors by court order in case the board engages in an activity that either violates the provisions of the Labour Law or of the “laws relevant to the preservation of public order and morals”. The Committee also had pointed out that the reference, as grounds for board dismissal, to any activity that violates the laws relevant to the preservation of the public order and morals is too broad and vague, and could lead to an application that hinders the exercise of the trade union rights enshrined in the Convention. Furthermore, the Committee had considered that the dismissal of the executive boards of employers’ or workers’ organizations by court order should be restricted to serious and repeated violations of the organizations’ constitutions or of relevant legislation, and recalls that legislation cannot impair nor be applied to impair the guarantees provided for in the Convention. The Committee notes that no information has been provided by the Government in this respect. It therefore once again requests the Government to take the necessary measures to amend section 108 of the Labour Law and to indicate all progress made in this respect.

Article 5. Limitation to a single confederation. In its previous comments, the Committee had requested the Government to take the appropriate measures 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”, so as to ensure the right of workers and employers to establish organizations of their own choosing at all levels. The Committee notes that the Government did not provide any information on the measures to amend section 106 of the Labour Law. Once again, the Committee recalls that the right of workers to be able to establish organizations of their own choosing, as set out in Article 2 of the Convention, implies that trade union diversity must remain possible in all cases. The Committee considers that it is important for workers to be able to change trade unions or to establish a new union for reasons of independence, effectiveness or ideological choice. Consequently, legislation which requires trade unions to be grouped together in a single federation or confederation raises problems of compatibility with the Convention. The Committee notes with regret the lack of progress in this regard and recalls that a legislatively imposed trade union monopoly at any level is incompatible with the requirements of the Convention. The Committee once again requests the Government to take the appropriate measures to amend section 106 of the Labour Law so as to ensure the right of workers to establish organizations of their own choosing at all levels, including the possibility of forming more than one confederation (general union), and to provide information on any developments in this respect.

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

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

Articles 2 and 3 of the Convention. Restrictions to the right to join unions and to draw up union constitutions and rules. The Committee notes that Ministerial Order No. 1 of 30 September 1964 includes a model regulation to guide the formulation of union rules, setting out the following conditions to be accepted as a trade union member, which are not compatible with the requirements of the Convention: 18 years of age (minors who have reached the minimum legal age for admission to employment, both as workers and as apprentices, cannot be legally deprived from the exercise of trade union rights), a certificate of good conduct approved by the competent authority (a requirement that entails undue interference), and no membership to another trade union (the obligation to join only one trade union unduly prejudices the right of workers to join organizations of their own choosing, in particular when they work in more than one enterprise). The Committee recalls that model rules intended to serve as guidelines to trade unions are acceptable provided that there is no obligation or pressure to accept them, and that, regardless of their non-binding nature, model rules should not include provisions that are incompatible with the requirements of the Convention. The Committee requests the Government to take any necessary measures to ensure that the model rules of Ministerial Order No. 1 of 1964 are not binding in law or in practice, and to amend them so that they are in full conformity with the abovementioned principles.

Private sector. In its previous direct request, the Committee had taken note of the Government’s declaration that unionization in the private sector has existed since the trade union movement began, in the form of the Workers Trade Union of Kuwait Airways and its Subsidiaries and the Trade Union of Bank Employees and Users. The Committee had also taken note of the hope expressed by the Government that these private sector unions would be able to establish a sectoral federation in the very near future in order to form the third pillar of the organizational structure of the Kuwait Trade Union Federation (KTUF), to supplement its two existing pillars (the Trade Union Federation of the Public Sector and the Trade Union Confederation of Oil and Petrochemical Industries). The Committee notes that in its last report the Government indicates that section 106 of the Labour Code acknowledges the right of trade unions to establish federations but does not provide information on whether unions in the private sector have progressed in the establishment of a sectoral federation. The Committee further notes that, according to the information at its disposal, the level of unionization in the private sector remains low and that the only two unions explicitly identified concern two industries (airlines and banking). The Committee requests the Government to promote the application of the Convention in the private sector and to provide information in this respect, including as to the number of unions in the private sector and their coverage, as well as on any developments regarding establishment of a sectoral federation.

Application of the Convention in practice. The Committee notes the observations made by the International Trade Union Confederation (ITUC) received on 4 August 2011 and 1 September 2014 alleging actions by the public authorities to ban strikes and to threaten workers participating in them, citing as examples strikes in the oil and public sectors. The Committee also takes note of the response from the Government stating that the Labour Act does not contain any provision which prevents workers from going on strike and is therefore in conformity with the Convention. The Committee also notes the Government’s statement that the role played by the authorities during a strike is restricted to the protection of public institutions, private property and human life in case strikes lead to rioting. The Committee requests the Government to establish, in consultation with the social partners, a legal framework recognizing the exercise of the right to strike and ensuring that those participating in legitimate peaceful strikes cannot be subject to sanctions, threats or other retaliation.

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

The Committee notes the observations made by the International Trade Union Confederation (ITUC) in communications received on 4 August 2011 and 1 September 2014, many of which concern issues dealt with by the Committee, as well as the response from the Government to the first communication. The Committee also takes note of the observations provided by the International Organisation of Employers (IOE) in a communication received on 1 September 2014.

Article 2 of the Convention. Migrant workers. In its previous observation, the Committee requested the Government to take the necessary measures to ensure full conformity of the legislation with the right of migrant workers to establish and join organizations of their own choosing, and to provide a copy of the order to be issued by the minister on the admission of non-Kuwaiti workers as trade union members.

Regarding the right to establish organizations, the Government notes in its report that it is the only trade union right not accorded to migrant workers, due to the fact that their residence in Kuwait is temporary and ends at their contracts’ expiration. The Committee recalls that the right to establish organizations is guaranteed under Article 2 of the Convention to all workers without distinction whatsoever, and that the temporal nature of residency of migrant workers does not justify depriving them of this right.

As to the right to join unions, the Government states in its report that the admission of non-Kuwaiti workers as trade union members is provided for by Ministerial Order No. 1 of 1964, which requires them to hold a work permit and to have resided in Kuwait for five years. The Committee observes that the legal imposition of these restrictions is not compatible with Article 2 of the Convention, as the right of workers, without distinction whatsoever, to establish and join organizations implies that all workers residing in the territory of a State, whether or not they have a work permit and regardless of years of residency, benefit from the trade union rights provided for by the Convention.

The Committee requests the Government to take any necessary measures to ensure the recognition of the right of migrant workers to join and establish organizations of their own choosing, repealing any restriction or requirement on account of work permit status or time of residence, and to provide information on any developments in this respect.

Domestic workers. In its previous observation, noting that section 5(2) of Private Sector Labour Law No. 6 of 2010 (Labour Act) provides that the situation of domestic workers will be governed by a decision to be taken by the competent minister, the Committee had hoped that an order regulating labour relations of domestic workers would be adopted in the near future and guarantee the rights of domestic workers to establish and join organizations. The Government reports that no decision or law allowing domestic workers to establish or join occupational organizations, has been promulgated. The Committee observes in this regard that the new law adopted in June 2015 on the rights of domestic workers does not provide for their right to organize. Regretting the lack of progress in this regard and hoping that it will be able to note progress in the near future, the Committee requests the Government to adopt any necessary measure to ensure the full recognition of the right of domestic workers to establish and join organizations. The Committee requests the Government to provide information on developments in this respect.

Other categories of workers. In its previous observation, the Committee requested the Government to indicate: (i) the manner in which the right to establish and join organizations of their own choosing is ensured to civil servants; and (ii) whether the Maritime Act and the law governing the oil sector include provisions on trade union rights. The Government indicates that the Maritime Act and the law governing the oil sector do not contain any provisions on trade union rights and that, therefore, the provisions of the Labour Act apply and fully guarantee trade union rights in these sectors. The Government indicates that there is no specific legislation on the rights of civil servants to establish or join unions, and that section 98 of the Labour Act, which recognizes the right to organize and establish unions, also covers civil servants, provided that there is no conflict with the laws which regulate their affairs. The Committee requests the Government to indicate how the right to establish and join unions of their own choosing is fully guaranteed for civil servants in practice, as well as whether any legislation applicable to civil servants limits or restricts their exercise of this right, and to provide a copy of the relevant legislation. The Committee further requests the Government to provide additional information on the exercise of trade union rights in practice in the maritime, oil and public sectors, including the number of unions established and the membership in each union.

Article 3. Financial administration of organizations. The Committee had previously requested the Government to take the necessary measures to amend section 104(2) of the Labour Act, which prohibits trade unions from using their funds in financial speculation, real estate or other forms of speculation. The Government notes in response that there are no restrictions imposed on the financial administration of organizations and that the prohibition on financial speculation is set out to avoid the risks involved and to prevent loss of union funds. The Committee further observes that section 104(3) of the Labour Act unduly subjects the acceptance of gifts and donations by unions to the approval of the ministry. The Committee recalls that legislative provisions that subject the acceptance of gifts and donations to prior authorization by the public authorities, or 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 or 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 organizations to submit periodic reports. The Committee regrets the lack of progress in this respect and again requests the Government to take the necessary measures to amend section 104(2) and 104(3) of the Labour Act in accordance with the abovementioned principle.

Overall prohibition on trade union political activities. In its previous observation, the Committee had requested the Government to take the necessary measures to revise section 104(1) of the Labour Act, which prohibits trade unions from involvement in any political matters. The Committee notes the Government’s response stating that political union activities are in conflict with the union’s main objective to defend the interests of workers and improve their financial, social and economic situation. The Committee once again recalls that legislation which prohibits all political activities for trade unions is not in conformity with the Convention, and that trade unions should be able to express their views on matters of economic and social policy affecting their members and workers in general. The Committee notes with regret the lack of progress in this respect and requests the Government to take the necessary measures to revise section 104(1) of the Labour Act, so as to eliminate the total ban on political activities in keeping with the abovementioned principle, and to indicate developments in this regard.

Compulsory arbitration. The Committee had noted in its previous observation that the intervention by the ministry in labour disputes pursuant to sections 131 and 132 of the Labour Act could lead to compulsory arbitration and the prohibition of strikes. The Committee notes the Government’s statement in its report that the aim of sections 131 and 132 was to avoid any interference by the ministry unless needed, and that the ministry has not thus far intervened pursuant to these sections. The Committee also notes that the Government welcomes in its report the Committee’s previous comments and declares that it will examine them in collaboration with the social partners. The Committee requests the Government to provide information on the results of this tripartite examination, in particular as to the need to amend sections 131 and 132 of the Labour Act, and hopes that it will be able to observe progress in this respect in the near future.

Dismissal of executive boards. Section 108 of the Labour Act provides for the possibility to dismiss an organization’s board of directors by court order in case it engages in an activity that either violates the provisions of the Labour Act or of the “laws relevant to the preservation of public order and morals”. The Committee points out that the reference, as grounds for board dismissal, to any activity that violates the laws relevant to the preservation of the public order and morals is too broad and vague, and could lead to an application that hinders the exercise of the trade union rights enshrined in the Convention. The Committee considers that the dismissal of the executive boards of employers’ or workers’ organizations by court order should be restricted to serious and repeated violations of the organizations’ constitutions or of relevant legislation, and recalls that legislation cannot impair nor be applied to impair the guarantees provided for in the Convention. The Committee requests the Government to take measures to amend section 108 of the Labour Act to ensure the respect of the abovementioned principle.

Article 5. Limitation to a single confederation. In its previous observation, the Committee once again requested the Government to take the appropriate measures to amend section 106 of the Labour Act, which provides that “there shall not be more than one general union for each of the workers and the employers”, so as to ensure the right of employers and workers to establish organizations of their own choosing at all levels, including the possibility of forming more than one general confederation. The Committee notes the Government’s reply that the restriction only concerns the establishment of a single confederation, in accordance with the state’s policies to unify unions’ efforts and prevent their dissipation. The Committee notes with regret the lack of progress in this regard, recalls that a legislatively imposed trade union monopoly at any level is incompatible with the requirements of the Convention, and requests the Government to take the appropriate measures to amend section 106 of the Labour Act, so as to ensure the right of workers to establish the organization of their own choosing at all levels, including the possibility of forming more than one confederation, and to provide information on any developments in this respect.

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

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the Government’s reply dated 3 August 2010 to the comments made by the ITUC regarding, inter alia, the fact that the law provides for a single trade union system, with only one national federation, the Kuwait Trade Union Federation (KTUF), allowed. The Committee notes that the Government indicates in its report that the allegations according to which the KTUF only includes public sector workers and trade union organizations are inexistent in the private sector, are not correct. The Government further indicates that since 1967, the KTUF has been based on two main organizational pillars: the Trade Union Federation of the Public Sector and the Trade Union Confederation of Oil and Petrochemical Industries, and that unionization in the private sector has existed since the trade union movement has begun, in the form of the Workers Trade Union of Kuwait Airways and its subsidiaries and the Trade Union of Bank Employees and Users. The Government’s report adds that since both unions have not formed a sectoral federation, they remain outside the KTUF while endeavouring to maintain good cooperative relations and joint work with the Federation. The Committee takes note of the hope expressed by the Government, in its report, that unions in the private sector will be able to establish a sectoral federation in the very near future in order to form the third pillar of the organizational structure of the KTUF. The Committee requests the Government to provide information in its next report on any developments in this respect.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) dated 24 August 2010 as well as the Government’s reply thereon.

The Committee notes that the Labour Law governing the private sector was promulgated in February 2010 (Law 6/2010) and that the fifth Book of the Law regulates workers’ and employers’ organizations as well as trade union rights. The Committee notes in particular that section 98 of the Law provides for the right of workers and employers to establish organizations in both the public and private sectors. The Committee notes with satisfaction that the new Labour Law resolves a number of discrepancies between the legislation and the Convention and in particular, that it eliminates the following provisions of the former Law: the requirement of at least 100 workers to establish a trade union (section 71) and ten employers to form an association (section 86); the prohibition on joining a trade union for individuals under 18 years of age (section 72); the requirement for a certificate from the Minister of the Interior approving the founding members of a trade union (section 74); the prohibition on establishing more than one trade union per establishment, enterprise or activity (section 71); the reversion of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution (section 77); and the restriction imposed on trade unions to join federations only where the activities are identical, or where industries are producing the same goods or supplying similar services (section 79).

The Committee also takes note of the report of the ILO’s technical assistance mission to Kuwait held on 6–11 February 2010.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. Domestic workers. In its previous observation, the Committee had requested the Government to amend the draft Labour Law, which excluded domestic workers from the Law’s provisions, or otherwise indicate the manner in which the right of domestic workers to establish and join organizations of their own choosing is ensured. It also requested the Government to provide a copy of the model contract it had promulgated for domestic workers and their employers by virtue of Order No. 568 of 2005. The Committee notes that the Government indicated the difficulty in extending the Labour Law’s provisions to domestic workers since, as domestic workers are considered members of the family, it is hard for the labour inspection department to enter private households to verify the application of the Law. The Committee notes that section 5(2) of the new Labour Law provides that the situation of domestic workers will be governed by a decision to be taken by the competent minister, which will set up the rules governing the relationship between domestic workers and their employers. The Government adds, in its report, that the labour contract further regulates the process of receiving and employing domestic workers. The Committee also notes that the report of the ILO’s technical assistance mission indicates in this regard that examples were provided during the mission of how certain countries monitor the national legislation, taking into account the difficulty of labour inspectors to enter private households. The Committee recalls that Article 2 of the Convention applies to all workers without distinction, including domestic workers, who should therefore be covered by the guarantees it affords and should have the right to establish and join occupational organizations (see 1994 General Survey on freedom of association and collective bargaining, paragraph 59). The Committee hopes that the order regulating labour relations of domestic workers will be adopted in the near future and that it will guarantee the rights of domestic workers in accordance with the abovementioned principle. The Committee requests the Government to provide information on any development in this respect in its next report.

Other categories of workers. In its previous observation, the Committee had asked the Government to clarify the types of workers governed by other laws referred to in the exclusions set forth in the draft Labour Law. The Government stated in this regard that the workers covered by other laws were government employees, seafarers and employees in the oil sector. The Committee notes that the new Labour Law applies to the private sector, including employees of the oil sector and maritime workers, except where specific provisions – of the Maritime Act or of the Oil Sector Labour Law – apply to them (sections 2–5 of the Law). It also notes that section 98 of the Law provides that the right of workers and employers to form organizations applies to both the public and private sectors. The Committee requests the Government, to indicate in its next report: (i) the manner in which the right to establish and join organizations of their own choosing is ensured to civil servants, and to provide a copy of the relevant legislation; and (ii) whether the Maritime Act and the law governing the oil sector include provisions on trade union rights.

As regards migrant workers, the Committee had noted that the draft new Labour Law appeared to have eliminated the restrictions on trade union membership for non-national workers, including restrictions on the right to vote and to be elected to trade union office (former section 72). The Committee notes that section 99 limits to Kuwaiti workers the right to establish a trade union organization. The Committee also notes that the Government indicates in its report that the new Labour Law has repealed the minimum requirement of five years for a migrant worker to join a trade union, and adds that the admission of non-Kuwaiti workers as trade union members needs to be prescribed by specific rules and conditions; that this has been left to an Order to be issued by the competent minister, in view of the large number of new migrant workers, the speed at which they move about and their lack of stability; and that the admission of new migrant workers as members of trade unions will be based on the verification that they are stable in their living conditions in the country. Welcoming the change made by the new Labour Law as to the right of migrant workers to join trade unions and recalling that all workers, including migrant workers, shall have the right to establish and join organizations of their own choosing, without distinction whatsoever, in accordance with the Convention, the Committee requests the Government to take the necessary measures to ensure full conformity of the legislation with the Convention and to provide, in its next report a copy of the Order to be issued by the minister on the admission of non-Kuwaiti workers as trade union members.

Article 3. Financial administration of organizations. The Committee had previously requested the Government to revise section 100 of the draft Labour Law so as to ensure the right of workers’ and employers’ organizations to organize their administration, including their finances, without interference by the public authorities. The Committee had noted with interest the Government’s indication that this provision had been annulled. While noting that the Government indicates in its report that government supervision is not limited to advice and follow-up as regards the manner in which trade unions keep their administrative and financial records, as well as guidance in order to correct any defects in the data and entries contained therein (section 104 of the Labour Law), the Committee notes that under section 104(2) of the new Labour Law, trade unions are explicitly prohibited from using their funds in financial speculation, real estate or other forms of speculation. The Committee recalls that legislative provisions that give authorities the right to restrict the freedom of trade unions to invest, administer and utilize their funds as they wish for normal and lawful trade union purposes are incompatible with the principles of freedom of association and that the control exercised by public authorities over trade union finances should not go beyond the requirement for the organizations to submit periodic reports. The Committee requests the Government to take the necessary measures to amend section 104(2) of the Labour Law in accordance with the abovementioned principle.

Overall prohibition on trade union political activities. In its previous observation, the Committee had requested the Government to consider revising the draft Labour Law so as to eliminate the total ban on the political activities of workers’ and employers’ organizations. The Committee notes that section 104(1) of the new Labour Law maintains the prohibition for trade unions to be involved in any political matters. The Committee notes that the Government adds in its report that the prohibition of engaging in political activities is maintained since the main objective of founding a trade union is to defend workers’ interests and not to engage in matters which are not to be included in the Labour Law. In these circumstances, the Committee once again recalls that legislation which prohibits all political activities for trade unions gives rise to serious difficulties with regard to the application of the Convention. Some degree of flexibility in legislation is therefore desirable, so that a reasonable balance can be achieved between the legitimate interest of organizations in expressing their point of view on matters of economic and social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities, on the other (see General Survey, op. cit., paragraph 133). The Committee requests the Government to take the necessary measures to revise section 104(1) of the Labour Code, so as to eliminate the total ban on political activities in keeping with the abovementioned principle, and to indicate any progress made in this regard in its next report.

Compulsory arbitration. The Committee notes that under section 131 of the new Labour Law, the ministry may intervene in a collective dispute without being asked to do so by any of the disputing parties to settle the dispute amicably and may also refer the dispute to the Reconciliation Committee or the Arbitration Board, as it deems appropriate. The Committee further notes that section 132 prohibits the parties to the dispute to stop the work, totally or partially while direct negotiations are ongoing or if the ministry has referred the dispute to the Reconciliation Committee or the Arbitration Board. The Committee understands accordingly that the intervention by the Ministry in a labour dispute may lead to an arbitration procedure being mandatory and to work stoppages being prohibited, i.e. strikes. The Committee recalls that in as far as compulsory arbitration prevents strike action, it is contrary to the right of trade unions to freely organize their activities. Compulsory arbitration to end a collective labour dispute and a strike is 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 the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. In these circumstances, the Committee requests the Government to take the necessary measures to amend sections 131–132 of the Labour Law, so as to ensure their full conformity with the abovementioned principles, and to provide information on any developments in this respect in its next report.

Article 5. Right of workers’ and employers’ organizations to establish federations and confederations. Restriction to a single federation. In its previous observation, the Committee requested the Government to amend the draft Labour Code, which limited trade unions to the establishment of a single general federation. In view of section 106 of the new Labour Law, the Committee understands that this provision has not been removed. The Committee further notes that the Government indicates in its report that if trade union pluralism is required and applied at the grass-roots, occupational and sectoral levels, trade union unity needs to be applied at the level of the federation and that it is neither in the national interest, nor in the workers’ interest to give up this important achievement. The Committee recalls that although the Convention clearly does not aim to make trade union pluralism compulsory, pluralism must be possible in every case, even if trade union unity was once adopted by the trade union movement (see General Survey, op. cit., paragraphs 96 and 107). The Committee therefore once again requests the Government to take the appropriate measures to amend section 106 of the Labour Law, so as to ensure the right of workers to establish the organization of their own choosing at all levels, including the possibility of forming more than one confederation, and to provide information on any developments in this respect in its next report.

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

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the Government’s report and its reply to the comments made by the International Trade Union Confederation (ITUC) on 10 August 2006. On 29 August 2008, the ITUC submitted additional comments on the application of the Convention. Both ITUC communications mainly refer to legislative issues already raised by the Committee in its previous observations.

The Committee had previously noted with interest the draft Labour Code, the provisions of which appear to resolve a number of discrepancies between the legislation and the provisions of the Convention that had been raised in its previous comments. In particular, it noted that the new draft Code appears to have eliminated the following provisions in the present Labour Code: the requirement of at least 100 workers to establish a trade union (section 71) and ten employers to form an association (section 86); the prohibition on joining a trade union for individuals under 18 years of age (section 72); the restrictions on trade union membership for non-national workers (section 72); the requirement for a certificate from the Minister of the Interior approving the founding members of a trade union (section 74); the prohibition on establishing more than one trade union per establishment, enterprise or activity (section 71); restrictions on the right to vote and to be elected to trade union office for non-nationals (section 72); the reversion of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution (section 77); the restriction imposed on trade unions to join federations only where the activities are identical, or where industries are producing the same goods or supplying similar services (section 79).

The Committee had also commented upon a number of other provisions of the draft Labour Code and requested the Government to report the progress made with respect to the draft Code’s adoption. The Committee notes the Government’s indication that a number of revisions have been made to the draft Labour Code, and that it was still before the People’s Assembly (Majlis El Umma) for discussion and adoption. In these circumstances, the Committee expresses the hope that the Government will take the necessary measures to amend the draft Labour Code, in accordance with its comments below, and requests the Government to provide a copy of the final version of the draft Labour Code with its next report.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. Domestic workers (section 5 of the draft Labour Code). Previously, the Committee had requested the Government to amend section 5 of the draft Labour Code, which excludes domestic workers from the Code’s provisions, or otherwise indicate the manner in which the right of domestic workers to establish and join organizations of their own choosing is ensured. It also requested the Government to provide a copy of the model contract it had promulgated for domestic workers and their employers. In this regard, the Committee notes that the Government requests assistance with regard to the difficulty in extending the draft Labour Code’s provisions to domestic workers since, as domestic workers are considered members of the family, it is difficult for the labour inspection department to enter private households to verify the application of the Code. In these circumstances, the Committee expects that the assistance requested will be provided by the Office in the very near future so as to guarantee domestic workers the right to establish and join occupational organizations. The Committee further requests the Government to indicate the legislation which governs labour relations of domestic workers.

Other categories of worker (section 5 of the draft Labour Code). Previously, the Committee had asked the Government to clarify the types of workers governed by other laws referred to in the exclusions set forth in section 5 of the draft Code. The Government states in this regard that the workers covered by other laws are government employees, seafarers and employees in the oil sector. The Committee requests the Government to indicate the manner in which the right to establish and join organizations of their own choosing is ensured to the abovementioned categories of workers and to provide copies of the legislation applicable to them – including the law governing the oil sector and the Civil Service Act.

Article 3. Minister’s excessive power to examine the financial books and records of workers’ and employers’ organizations, and the global prohibition on accepting donations and legacies without approval of the ministry (section 100 of the draft Labour Code). The Committee had previously requested the Government to indicate whether section 100 of the draft Labour Code had been revised so as to ensure the right of workers’ and employers’ organizations to organize their administration, including their finances, without interference by the public authorities. In respect of this matter, the Committee notes with interest the Government’s indication that this provision has been annulled.

Overall prohibition on trade union political activities (section 100 of the draft Labour Code). Previously, the Committee had requested the Government to consider revising section 100 of the draft Code so as to eliminate the total ban on the political activities of workers’ and employers’ organizations, and to indicate the progress made in this regard. The Committee notes that the Government reiterates that the ban on political activities has been maintained, as such activities lie outside the purview of trade unions; the said prohibition is set out in
subsection (1) of the new section 101 of the draft Labour Code. In these circumstances, the Committee once again recalls that legislation which prohibits all political activities for trade unions give rise to serious difficulties with regard to the provisions of the Convention. Some degree of flexibility in legislation is therefore desirable, so that a reasonable balance can be achieved between the legitimate interest of organizations in expressing their point of view on matters of economic and social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities, on the other (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 133). The Committee requests the Government to consider revising section 101 (formerly section 100) of the draft Code, so as to eliminate the total ban on political activities in keeping with the abovementioned principle, and to indicate any progress made in this regard.

Compulsory arbitration (sections 120 and 124 of the draft Labour Code). The Committee had previously noted that under section 120 of the draft Code the Conciliation Committee may, if it is unable to settle a dispute, refer the unsettled issues to the arbitration tribunal. The Committee had also noted that section 124 – now section 125, according to the Government – allows the competent ministry to intervene in a dispute without being asked to do so by any of the disputing parties, if need be, to bring about an amicable settlement of the dispute, and may also refer the dispute to the Conciliation Committee or the arbitration tribunal, as it deems appropriate.

The Committee notes the Government’s request for clarification of its previous comment concerning these sections. In this respect, the Committee recalls that, in as far as, compulsory arbitration prevents strike action, it is contrary to the right of trade unions to freely organize their activities. Compulsory arbitration to end a collective labour dispute and a strike is 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 the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. In these circumstances, the Committee once again requests the Government to amend sections 120 and 124 of the draft Labour Code, so as to ensure their full conformity with the principles mentioned above.

Article 5. Right of workers’ and employers’ organizations to establish federations and confederations. Right of employers to form federations
(section 95 of the draft Labour Code). The Committee had previously noted that section 95 – now section 96, according to the Government – provides that employers shall have the right to form federations, according to the terms and conditions issued by the Minister, and requested the Government to provide information on any regulations issued by the Minister in this regard. The Committee notes the Government’s indication that no regulations have been promulgated under it.

Restriction to one single federation (section 101 of the draft Labour Code). In its previous comment, the Committee requested the Government to amend section 101 of the draft Labour Code, which limits trade unions to the establishment of a single general federation. In this connection, the Committee notes with interest the Government’s statement that this provision has been annulled. Nevertheless, the Committee further notes the Government’s indication that section 102 has been amended to read as follows: “Trade unions which are proclaimed in accordance with the provisions of this chapter shall establish federations which defend their common interests. Proclaimed federations set up in accordance with the provisions of this chapter shall constitute a Confederation. The federations and the Confederation which are set up shall follow the same procedures as set out in the establishment of trade unions.” The Committee observes that section 102, as amended, would appear to permit first-tier trade union and federation multiplicity but limits federations to the formation of a single confederation. In these circumstances, the Committee requests the Government to take the appropriate measures to amend section 102 of the draft Labour Code, so as to ensure the right of workers to establish the organization of their own choosing at all levels, including the possibility of forming more than one confederation.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report and its reply to the comments made by the International Confederation of Free Trade Unions (ICFTU) on 31 August 2005. On 10 August 2006, the ICFTU submitted additional comments on the application of the Convention. Both ICFTU communications mainly refer to legislative issues already raised by the Committee in its previous observations.

In its previous observation, the Committee had noted with interest the draft Labour Code, the provisions of which appear to resolve a number of discrepancies between the legislation and the provisions of the Convention that had been raised in its previous comments. In particular, it noted that the new draft Code appears to have eliminated the following provisions in the present Labour Code: the requirement of at least 100 workers to establish a trade union (section 71) and ten employers to form an association (section 86); the prohibition on joining a trade union for individuals under 18 years of age (section 72); the restrictions on trade union membership for non-national workers (section 72); the requirement for a certificate from the Minister of the Interior approving the founding members of a trade union (section 74); the prohibition on establishing more than one trade union per establishment, enterprise or activity (section 71); restrictions on the right to vote and to be elected to trade union office for non-nationals (section 72); the reversion of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution (section 77); the restriction imposed on trade unions to join federations only where the activities are identical, or where industries are producing the same goods or supplying similar services (section 79).

In this respect, the Committee notes the Government’s statement that the new draft Labour Code for the private sector was referred to the Council of Ministers for eventual submission to the People’s Assembly (Majlis El Umma) for discussion and adoption. The Committee also notes that, although the Government indicates that a copy of the draft code is attached to its report, the said draft has not been received. The Committee requests the Government to indicate in its next report the progress made with respect to the adoption of the new Labour Code and to transmit a copy of the said Code as soon as it has been adopted.

Concerning other provisions of the draft Code upon which it had previously made comments, the Committee notes the Government’s following indications.

Domestic workers (section 5 of the draft Labour Code). The Government states that the exclusion of domestic workers from the scope of application of the Labour Code can be explained through the special characteristics of this category in Kuwait. As domestic workers are considered members of the family, it is difficult for the labour inspection department to enter private households to verify the application of the Code. The Government has nevertheless set up, by virtue of Order No. 568 of 2005, a special committee to examine the situation of domestic workers; the said committee has proposed a model contract for domestic workers and their employers, and this contract shall be distributed to all of the Government’s embassies in the countries exporting domestic workers. The Committee takes note of this information and the Government’s request for technical assistance regarding this issue. It recalls, once again, that Article 2 of the Convention applies to all workers without distinction, including domestic workers, who should therefore be covered by the guarantees it affords and should have the right to establish and join occupational organizations (see 1994 General Survey on freedom of association and collective bargaining, paragraph 59). In this connection, the Committee requests the Government to consider amending section 5 of the draft Labour Code, which excludes domestic workers from the provisions of the Code, or otherwise indicate the manner in which the right to establish and join organizations of their own choosing is ensured to domestic workers. With respect to the model contract for domestic workers, the Committee expresses the hope that the right to establish and join organizations is expressly provided for in the said contract; noting that a copy of the contract has not been received, the Committee requests the Government to attach a copy of it with its next report.

Restriction to one single general federation (section 101 of the draft Labour Code). The Government indicates that the restrictions concerning a single trade union system, as set out in the current legislation, have been avoided in the draft Labour Code and that the same applies to the limitation on the creation of more than one trade union confederation; this is set out in section 102. The Committee notes, nevertheless, that section 102 only allows the general federation to join Arab or international federations. Otherwise, the limitation on the establishment of general federations set out in section 101 remains. In these circumstances the Committee once again requests the Government to take appropriate measures so that the draft Code will ensure the right of workers to establish the organization of their own choosing at all levels, including the possibility of forming more than one general federation.

Minister’s excessive power to examine the financial books and records of workers’ and employers’ organizations, and global prohibition for accepting donations and legacies without approval of the ministry (section 100 of the draft Labour Code). The Government states that the extensive powers provided in Law No. 38 of 1964 were abrogated by section 101 of the draft Labour Code. In these circumstances, the Committee asks the Government to indicate whether section 100 of the draft Labour Code has been revised so as to ensure the right of workers’ and employers’ organizations to organize their administration, including their finances, without interference by the public authorities.

Overall prohibition of trade union political activities (section 100 of the draft Labour Code). The Government indicates that these restrictions have been maintained in the draft Code, due to the fact that trade unions are not political parties and must limit their role to the purposes for which they were established – namely, to protect and defend their members’ interests. With regard to this matter, the Committee once again recalls that legislation which prohibits all political activities for trade unions give rise to serious difficulties with regard to the provisions of the Convention. Some degree of flexibility in legislation is therefore desirable, so that a reasonable balance can be achieved between the legitimate interest of organizations in expressing their point of view on matters of economic and social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities, on the other (see General Survey, op. cit. paragraph 133). The Committee again asks the Government to consider revising section 100 of the draft Code, so as to eliminate the total ban on political activities in keeping with the abovementioned principle and to inform it of the progress made in this regard.

Compulsory arbitration (sections 116-125 of the draft Labour Code). The Government indicates that, under the new draft Code, arbitration is optional for workers and not compulsory. In this respect, the Committee observes that, under section 120 of the draft Code, the Conciliation Committee may, if it is unable to settle a dispute, refer the unsettled issues to the arbitration tribunal. Furthermore, section 124 allows the competent ministry to intervene in a dispute without being asked to do so by any of the disputing parties, if need be, to bring about an amicable settlement of the dispute, and may also refer the dispute to the Conciliation Committee or the arbitration tribunal, as it deems appropriate. In light of the above, the Committee once again requests the Government to take the necessary measures to ensure that final and binding arbitration is only imposed with respect to essential services in the strict sense of the term, public servants exercising authority in the name of the State and in cases of acute national crises, or in the event that both parties agree.

Finally, the Committee regrets that the Government’s reply otherwise does not address a number of other points raised by the Committee in its 2004 observation. It therefore reiterates those hitherto unaddressed comments, and in particular asks the Government to:

­–      clarify the types of workers governed by other laws referred to in the exclusions set forth in section 5 of the draft Code;

–      provide a copy of the special laws applicable in the oil and public sectors, and to indicate the manner in which they might restrict the application of Part 5 of the draft Code to the workers in these sectors (section 94 of the draft labour Code);

–      provide information on any regulations issued by the Minister (section 95 of the draft Code) relating to the right of employers to form federations;

–      consider revising section 98 of the draft Code so that the Minister’s authority to refuse approval of the constitution of an employers’ or workers’ organization is strictly limited and to impose a time limit for the decision which, if not respected, shall give rise to the registration of the organization.

The Committee hopes that the Government will take the necessary measures to make the changes indicated above to bring the legislation into conformity with the Convention and asks the Government to transmit any legislative text adopted or envisaged in this regard.

Finally, the Committee notes that the ICFTU refers to the arrest and deportation of more than 60 Indian migrant workers who had staged a sit-in to protest poor living conditions and pay arrears. In this connection, the Committee recalls that the peaceful exercise of trade union rights by workers should not lead to arrests and deportation. The Committee requests the Government to submit its observations in relation to this comment.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes note of the comments made by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 31 August 2005. The Committee notes that these comments relate to issues which have been the subject of previous observations by the Committee. It will therefore examine these comments at its next session, along with the issues raised by the Committee in its previous observation (see 2004 observation, 75th Session) and the Government’s report, which is due in 2006.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the Government’s report. It notes in particular the Government’s indication that it is making diligent efforts towards the adoption of the new draft Labour Code of the Private Sector, through the setting up of a tripartite committee by virtue of Ministerial Order No. 168/2003 responsible for reviewing the draft Code and following up on its procedures for promulgation.

The Government reports that it has requested the technical assistance of the Office in reviewing the conformity of the provisions of the draft Code with international labour standards, so that it could take these comments into account prior to the Code’s adoption. The Government adds that it has taken into account the previous comments made by the Committee of Experts in the drafting of the Labour Code, so as to bring the text into conformity with the provisions of ratified Conventions. The sections that are in conflict with the provisions of Conventions were imposed by the special conditions arising out of the terrorist attacks that are currently afflicting the world. The Government will transmit a copy of the Code as soon as it is adopted.

The Committee notes with interest the provisions of the draft Labour Code, which would appear to resolve numerous discrepancies between the legislation and the provisions of the Convention that had been raised in its previous comments. In particular, the Committee notes that the new draft Code appears to have eliminated the following provisions in the present Labour Code: the requirement of at least 100 workers to establish a trade union (section 71) and ten employers to form an association (section 86); the prohibition on joining a trade union for individuals under 18 years of age (section 72); the restrictions on trade union membership for non-national workers (section 72); the requirement for a certificate from the Minister of the Interior approving the founding members of a trade union (section 74); the prohibition on establishing more than one trade union per establishment, enterprise or activity (section 71); restrictions on the right to vote and to be elected to trade union office for non-nationals (section 72); the reversion of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution (section 77); the restriction imposed on trade unions to join federations only where the activities are identical, or where industries are producing the same goods or supplying similar services (section 79).

The Committee notes, however, that there remain in the draft Labour Code some provisions upon which it had previously made comments in respect of the following provisions of the Convention.

Article 2 of the Convention. The Committee notes that section 5 of the draft Labour Code maintains the exclusion of domestic workers from the scope of its application and further excludes more generally workers governed by other laws, as provided in the said laws. The Committee recalls that this Article of the Convention provides that all workers, without distinction whatsoever, shall have the right to establish and join organizations of their own choosing and the only possible exception in this regard concerns the police and the armed forces, as stipulated in Article 9. The Committee therefore requests the Government to indicate the manner in which this right is ensured to domestic workers and to clarify the types of workers governed by other laws referred to in the exclusion in section 5.

The Committee further notes that section 94 provides that Part 5 of the draft Code concerning workers’ and employers’ organizations and the right to organize shall apply to the oil and public sectors to the extent that the provisions are not inconsistent with the applicable laws thereto. The Committee requests the Government to provide a copy of the special laws applicable in the oil sector and in the public sector and to indicate the manner in which they might restrict the application of Part 5 to the workers in these sectors.

The Committee notes that section 95 of the draft Code provides that employers shall have the right to form federations, according to the terms and conditions issued by the Minister. The Committee trusts that any such terms and conditions do not restrict the right of employers to form organizations and federations of their own choosing and requests the Government to keep it informed of any regulations issued by the Minister in this regard.

The Committee also notes that section 98 of the draft Code provides generally for the legal personality of a workers’ or employers’ organization upon the decision of the Minister approving the constitution thereof. The Committee recalls that legislation that does not clearly define the procedures of the formalities which must be observed or the reasons which the competent authority may give for refusal or that confers on the competent authority a genuinely discretionary power to grant or withhold approval required for the establishment and functioning of an organization, may be tantamount to requiring previous authorization, contrary to this Article of the Convention. The Committee therefore requests the Government to consider revising this draft provision so that the Minister’s authority to refuse approval of a constitution is strictly limited and to impose a time limit for the decision which, if not respected, shall give rise to the registration of the organization.

Finally, the Committee notes that, while having apparently eliminated the elements of trade union monopoly at enterprise and sectoral level, section 101 of the draft Code maintains the restriction to one single general federation. The Committee requests the Government to take the necessary measures so that the draft Code will ensure the right of workers to establish the organization of their own choosing at all levels, including the possibility for more than one general federation.

Article 3. The Committee notes that section 100 of the draft Code grants the Minister excessive power to examine the financial books and records of workers’ and employers’ organizations and provides a global prohibition for engagement in political activities and for accepting donations and legacies without approval of the Ministry. The Committee recalls that the right of workers’ and employers’ organizations to organize their administration without interference by the public authorities includes in particular autonomy and financial independence and the protection of the assets and property of these organizations. The Committee considers that there is no infringement of the right of organizations to organize their administration if, for example, the supervision is limited to the obligation of submitting periodic financial reports or if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should not infringe the principles of freedom of association); similarly, there is no violation of the Convention if such verification is limited to exceptional cases, for example in order to investigate a complaint, or if there have been allegations of embezzlement. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 124 and 125).

The Committee considers that the powers vested in the Minister by virtue of section 100 of the draft Code, both in terms of the unrestricted access to organizations’ books and records and as regards the requirement that donations and legacies receive prior approval, go beyond the limits set forth in the paragraph above and requests the Government to consider revising this section accordingly.

As regards the overall prohibition of political activities, the Committee recalls that legislation which prohibits all political activities for trade unions gives rise to serious difficulties with regard to the provisions of the Convention. Some degree of flexibility in legislation is therefore desirable, so that a reasonable balance can be achieved between the legitimate interest of organizations in expressing their point of view on matters of economic and social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities, on the other (see General Survey, op. cit., paragraph 133). The Committee therefore requests the Government to consider revising section 100 of the draft Code so as to eliminate the total ban on political activities in keeping with the above mentioned principle.

The Committee further notes that sections 116-125 of the draft Code set up a system of compulsory arbitration contrary to the right of workers’ organizations to organize their activities and formulate their programmes free from government interference. The Committee therefore requests the Government to take the necessary measures to ensure that final and binding arbitration is only imposed with respect to essential services in the strict sense of the term, public servants exercising authority in the name of the State and in cases of acute national crises, or in the event that both parties agree.

The Committee trusts that the Government will take the necessary measures in the near future to bring the provisions of the draft Labour Code into conformity with the points raised above and that the Code will be adopted shortly so as to ensure greater conformity with the provisions of the Convention. It requests the Government to indicate, in its next report, the progress made in this regard and to transmit a copy of the Labour Code as soon as it has been adopted.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee takes note of the Government’s report. In its previous comments, the Committee had noted the draft amendments to the Private Sector Labour Code provided by the Government, which responded to a number of comments concerning discrepancies between the national legislation and the Convention, which the Committee had been commenting upon for several decades. It notes with regret that the Government’s latest report does not contain any information on the progress made in adopting these amendments and merely refers to the current legislation with a general statement that the draft Labour Code governing the private sector responds to most of the Committee’s comments. Recalling that the Government has been referring to a draft Labour Code since 1996, the Committee expresses the firm hope that this Code will be adopted in the near future and that it will ensure full conformity with the provisions of the Convention.

The Committee recalls that it has commented for several years on the need to repeal or amend the following provisions of the Labour Code (Act No. 38 of 1964), which are contrary to the Convention.

Article 2 of the Convention

-  The exclusion from the scope of the Code, and thus from the protection afforded by the Convention, of domestic workers (section 2 of the Code as modified in 1996).

-  The requirement of at least 100 workers to establish a trade union (section 71) and ten employers to form an association (section 86).

-  The prohibition on joining a trade union for individuals under 18 years of age (section 72).

-  The requirement of five years’ residence in Kuwait for non-national workers before they may join a trade union, and the requirement that a certificate of moral standing and good conduct delivered by the competent authority be obtained in order to join a trade union (section 72).

-  The requirement that a certificate be obtained from the Minister of the Interior stating that he has no objection to any of the founding members, before a trade union may be established, and the requirement that at least 15 members must be Kuwaiti in order to found a trade union (section 74).

-  The prohibition to establish more than one trade union per establishment, enterprise or activity (section 71).

Article 3

-  The ban on the right to vote and to be elected to trade union office for unionized workers not of Kuwaiti nationality, except to elect a representative having the right only to voice their opinions with the Kuwaiti union officers (section 72).

-  The prohibition on trade unions from engaging in any political activity (section 73).

-  The wide powers of supervision of the authorities over trade union books and registers (section 76).

-  The reversion of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution (section 77).

Articles 5 and 6

-  The restriction imposed on trade unions to join federations only where the activities are identical, or where industries are producing the same goods or supplying similar services (section 79).

-  The prohibition for organizations and their federations to establish more than one general confederation (section 80).

-  The single trade union system established under sections 71, 79 and 80, read together.

While the Committee had previously noted that several of the draft amendments appeared to eliminate earlier sections of the Labour Code which were not in conformity with the Convention, and that the Government had submitted a proposal to amend section 71 (concerning the requirement of 100 workers to form a union) of the current Labour Code of 1964 until the new draft Labour Code was adopted, the Committee nevertheless had observed that some important discrepancies remained between the draft law and the provisions of the Convention, in particular as concerns trade union rights for migrant workers and the powers bestowed upon the Council of Ministers to dissolve workers’ and employers’ organizations. Therefore, it expresses once again the firm hope that the necessary measures will be taken in the near future to bring the legislation into conformity with the Convention in respect of the abovementioned issues and trusts that the other points which had been raised in its previous comments will also be fully addressed in the new Code. The Committee requests the Government to indicate in its next report the progress made in this regard and supply a copy of the Code once it is adopted.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report. It also notes the draft amendments to the Private Sector Labour Code provided by the Government as well as the report of the ILO mission, which recently visited the country.

The Committee recalls that it has commented for several years on the need to repeal or amend the following provisions of the Labour Code (Act No. 38 of 1964), which are contrary to the Convention.

Article 2 of the Convention

-  The exclusion from the scope of the Code, and thus from the protection afforded by the Convention, of domestic workers (section 2 of the Code as modified in 1996).

-  The requirement of at least 100 workers to establish a trade union (section 71) and ten employers to form an association (section 86).

-  The prohibition to join a trade union for individuals of under 18 years of age (section 72).

-  The requirement of five years’ residence in Kuwait for non-national workers before they may join a trade union, and the requirement that a certificate of moral standing and good conduct delivered by the competent authority be obtained in order to join a trade union (section 72).

-  The requirement that a certificate be obtained from the Minister of the Interior stating that he has no objection to any of the founding members, before a trade union may be established, and the requirement that at least 15 members must be Kuwaiti in order to found a trade union (section 74).

-  The prohibition to establish more than one trade union per establishment, enterprise or activity (section 71).

Article 3

-  The ban on the right to vote and to be elected to trade union office for unionized workers not of Kuwaiti nationality, except to elect a representative having the right only to voice their opinions with the Kuwaiti union officers (section 72).

-  The prohibition on trade unions from engaging in any political activity (section 73).

-  The wide powers of supervision of the authorities over trade union books and registers (section 76).

-  The reversion of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution (section 77).

Articles 5 and 6

-  The restriction imposed on trade unions to join federations only where the activities are identical, or where industries are producing the same goods or supplying similar services (section 79).

-  The prohibition for organizations and their federations to establish more than one general confederation (section 80).

-  The single trade union system established under sections 71, 79 and 80, read together.

The Committee notes with interest that in the latest draft amendments to the Labour Code of 1964 provided by the Government, it appears that all the sections which previously imposed trade union monopoly at the enterprise and national level, have been removed. It further notes that section 95 of the draft amendments provides that the provisions of the law are applicable to the workers in the private sector, as well as workers in both government and oil sectors provided they shall not conflict with the laws regulating them. In this regard, while noting the positive steps taken by the Government, the Committee would request it to confirm that the right to organize is indeed granted to civil servants and workers in the oil sectors.

Article 2.

The right to organize of domestic workers. The Committee notes the Government’s information according to which it has taken into account domestic workers in the draft Labour Code and that section 5 of the new draft specifies that the minister shall issue an order on the rules that regulate the relations between employers and domestic workers. In this regard, the Committee recalls that Article 2 of the Convention applies to all workers without distinction, including domestic workers, who should therefore be covered by the guarantees it affords and should have the right to establish and join occupational organizations. (see 1994 General Survey on freedom of association and collective bargaining, paragraph 59).

Articles 2 and 3.

Trade union rights of migrant workers. The Committee notes that section 96 of the draft amendments provides that all Kuwaiti workers shall have the right to establish trade unions. This provision would appear to be more restrictive than section 72 of the current Labour Code which refers to a five-years’ residence requirement in Kuwait for non-nationals to join a trade union. In this respect, the Committee recalls that restrictions on the right to organize based on nationality may, in particular, prevent migrant workers from playing an active role in the defence of their interests, especially in sectors where they are the main source of labour. The right of workers, without distinction whatsoever, to establish and join organizations implies that anyone legally residing in the territory of a given State benefits from the trade union rights provided by the Convention, without any distinction based on nationality (see General Survey, paragraph 63). The Committee therefore requests the Government to indicate the measures taken or envisaged to ensure that foreign workers in Kuwait are guaranteed the right to organize and that they may be eligible for trade union office, at least after a reasonable period of residence (see General Survey, paragraph 118).

Article 3.

The right of workers’ organizations to organize their administration and activities.With regard to the global prohibition of political activity and the need for approval of the ministry in order to receive gifts or bequests, the Committee notes that these points have not been modified and still appear in section 101 of the draft amendments. The Committee is of the view that legislative provisions which prohibit all political activities for trade unions give rise to serious difficulties with regard to the principles of the Convention. Some degree of flexibility in the legislation is therefore desirable so that a reasonable balance can be achieved between the legitimate interest of organizations in expressing their point of view on matters of economic and social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities, on the other (see General Survey, paragraph 133). Furthermore, the Committee considers that problems of compatibility with the Convention may arise when the law requires that certain financial operations, such as the receipt of funds abroad, be approved by the public authorities (see General Survey, paragraph 126). The Committee therefore requests the Government to take the necessary measures to ensure that the Labour Code is amended in the light of these principles.

Article 4.

The right not to be dissolved by administrative authority. The Committee notes with concern that, under section 104 of the draft amendments, it appears that workers’ and employers’ organizations may be dissolved by virtue of a decision by the Council of Ministers upon the advice of the competent minister. In this regard, the Committee would first recall that the Labour Code currently in force, as well as previous drafts examined by the Committee, limited dissolution to voluntary dissolution and legal dissolution based on a court ruling. The Committee recalls that the possibility of administrative dissolution as set out in section 104 of the most recent draft involves a serious risk of interference by the authorities in the very existence of organizations and should therefore be accompanied by judicial safeguards, in order to avoid the risk of arbitrary action. While it is preferable for legislation not to allow dissolution or suspension of organizations by administrative authority, if it does, the organization affected by such measures must have the right of appeal to an independent and impartial judicial body which is competent to examine the substance of the case and, where appropriate, to rescind such measure; moreover, the administrative decision should not take effect until a final decision is handed down (see General Survey, paragraph 185). The Committee therefore trusts that the Government will take the necessary measures to ensure that any administrative dissolution may be appealed to a judicial body and will be accompanied by the above-noted safeguards.

While noting with interest that several of the draft amendments appear to eliminate earlier sections of the Labour Code which were not in conformity with the Convention, and that the Government has submitted a proposal to amend section 71 (concerning the requirement of 100 workers to form a union) of the current Labour Code of 1964 until the new draft Labour Code is adopted, the Committee nevertheless observes that some important discrepancies remain between the draft law and the provisions of the Convention. Therefore, it expresses the firm hope that the necessary measures will be taken in the near future to bring the legislation into conformity with the Convention in respect of the abovementioned issues and trusts that the other points which had been raised in its previous comments will also be fully addressed in the new Code. The Committee requests the Government to indicate in its next report the progress made in this regard and supply copies of any further drafts or adopted version of the Code.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee takes note of the Government’s report as well as the statement of the Government representative to the Conference Committee in 2000 and the discussion that followed.

The Committee recalls that it has commented for several years on the need to repeal or amend the following provisions of the Labour Code (Act No. 38 of 1964), which are contrary to the Convention.

Article 2 of the Convention

-  The exclusion from the scope of the Code, and thus from the protection afforded by the Convention, of domestic workers (section 2 of the Code as modified in 1956).

-  The requirement of at least 100 workers to establish a trade union (section 71) and ten employers to form an association (section 86).

-  The prohibition to join a trade union for individuals of under 18 years of age (section 72).

-  The requirement of five years’ residence in Kuwait for non-national workers before they may join a trade union, and the requirement that a certificate of moral standing and good conduct delivered by the competent authority be obtained in order to join a trade union (section 72).

-  The requirement that a certificate be obtained from the Minister of the Interior stating that he has no objection to any of the founding members, before a trade union may be established, and the requirement that at least 15 members must be Kuwaiti in order to found a trade union (section 74).

-  The prohibition to establish more than one trade union per establishment, enterprise or activity (section 71).

Articles 5 and 6

-  The restriction imposed on trade unions to join federations only where the activities are identical, or where industries are producing the same goods or supplying similar services (section 79).

-  The prohibition for organizations and their federations to establish more than one general confederation (section 80).

-  The single trade union system established under sections 71, 79 and 80, read together.

Article 3

-  The ban on the right to vote and to be elected for unionized workers not of Kuwaiti nationality, except to elect a representative having the right only to voice their opinions with the Kuwaiti union officers (section 72).

-  The prohibition on trade unions from engaging in any political or religious activity (section 73).

-  The wide powers of supervision of the authorities over trade union books and registers (section 76).

-  The reversion of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution (section 77).

The Committee takes note of the Government’s reference to a draft law to modify the Labour Code (Act No. 38 of 1964). The Government states that the draft law has been upgraded and would incorporate the comments made by the Committee. In particular, the Government indicates that with respect to the exclusion from the scope of the Labour Code of 1964 of specific categories of workers, sections 97 and 98 of the new draft Labour Code would eliminate these restrictions. Furthermore, sections 103, 106 and 110 of the said draft would ensure conformity with the provisions of the Convention with respect to the following points:

-  the requirement of a certificate of good conduct from the Ministry of the Interior by the founding member of a union;

-  the reversion of a trade union’s assets to the Ministry of Social Affairs upon dissolution;

-  the impossibility of an administrative dissolution.

The Government also indicates that section 99 of the new draft Labour Code would set down the procedure for the establishment of workers’ and employers’ organizations. The Committee observes that draft section 99 provides that the meeting of a number of workers or a few employers, constituted in a general assembly, would be in charge of adopting founding statutes guided by the standard statutes promulgated by a ministerial decision. In this regard, the Committee considers that any legislative or administrative provisions concerning the preparation, content, amendment, acceptance or approval of constitutions and rules of workers’ or employers’ organizations which go beyond formal requirements may hinder the establishment and development of organizations and constitute interference of the public authorities in trade union affairs, contrary to Article 3(2) of the Convention (see General Survey on freedom of association and collective bargaining, 1994, paragraph 111), and requests the Government to transmit, in its next report, the ministerial decision containing said standard statutes, in order to examine their compatibility with the Convention.

Thus, noting that there are still discrepancies between the draft law and the Convention, the Committee hopes that said draft law, with the necessary amendments, will rapidly be adopted and promulgated. It again urges the Government to take the necessary measures in the near future to ensure that the legislation on which it has been commenting for several years is brought into conformity with the requirements of the Convention.

[The Government is asked to report in detail in 2001.]

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report. It recalls that it has commented for many years on the need to repeal or amend the following provisions of the Labour Code (Act No. 38 of 1964), which are contrary to the Convention.

Article 2 of the Convention

-- The exclusion from the scope of the Code, and thus from the protection afforded by the Convention, of state and public service workers, fixed-term workers employed by the State under the regulations concerning the employment of Indian and Pakistani citizens, domestic workers and employees holding similar positions, and seafarers (section 2 of the Code).

-- The requirement of at least 100 workers to establish a trade union (section 71) and ten employers to form an association (section 86).

-- The requirement of five years' residence in Kuwait for non-national workers before they may join a trade union, and the requirement that a certificate of moral standing and good conduct be obtained in order to join a trade union (section 72).

-- The requirement that a certificate be obtained from the Minister for the Interior stating that he has no objection to any of the founding members, before a trade union may be established, and the requirement that at least 15 members must be Kuwaiti in order to found a trade union (section 74).

-- The prohibition to establish more than one trade union per establishment or activity (section 71).

Articles 5 and 6

-- The restriction imposed on trade unions to join federations only where the activities are identical, or where industries are producing the same goods or supplying similar services (section 79).

-- The prohibition for organizations and their federations to establish more than one general confederation (section 80).

-- The single trade union system established under sections 71, 79 and 80, read together.

Article 3

-- The ban on the right to vote and to be elected for unionized workers not of Kuwaiti nationality, except to elect a representative having the right only to voice their opinions before the union officers (section 72).

-- The prohibition on trade unions from engaging in any political or religious activity (section 73).

-- The wide powers of supervision of the authorities over trade union books and registers (section 76).

-- The reversion of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution (section 77).

The Committee again urges the Government to indicate in its next report the measures taken to bring the provisions of the legislation mentioned above into conformity with the requirements of the Convention and recalls the possibility of ILO assistance, if necessary, in the drafting of its legislation.

Noting the Government's reference to the draft law to modify the Labour Code (Act No. 38 of 1964), the Committee recalls in this respect that its earlier comments dealt with the discrepancies between the draft law and the Convention in respect of restrictions on the right of all workers and employers, whether they be nationals or foreigners, public servants, workers, domestic workers or seafarers, to establish professional organizations of their own choosing for the defence of their interests, in accordance with Article 2 of the Convention. The Committee had specifically highlighted the incompatibility of provisions associating numerical conditions and nationality in the establishment of a professional organization, as follows:

-- the requirement of at least ten Kuwaiti employers in order to form an association (section 101 of the draft law);

-- the requirement that at least 15 founding members must be Kuwaiti in order to establish a trade union (section 102(1) of the draft law).

The Committee also noted possibilities of interference on the part of the public authorities in trade union activities, as follows:

-- the requirement that a certificate of good conduct be obtained by each founding member from the Ministry of the Interior before a trade union may be established (section 103(e));

-- the reversion of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution (section 110).

The Committee hopes that the draft law will rapidly be adopted and promulgated. It again requests the Government to take the necessary measures in the near future to ensure that the legislation on which it has been commenting for several years is brought into conformity with the requirements of the Convention.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information provided in the Government's report.

The Committee notes with interest that, according to the Government's report, the draft law to modify and repeal certain provisions of the Labour Code (Act No. 38 of 1964) has been submitted to the competent authority for adoption.

The Committee intends to examine the draft Labour Code in the light of its conformity with the Convention, once it has been translated.

The Committee recalls that its previous comments raised the following discrepancies between the draft law and the Convention that still remained concerning the restrictions on the right of foreign workers and employers, as well as nationals, to form organizations, and the possibility of interference of the public authorities in trade union activities:

-- the requirement of a least ten Kuwaiti employers in order to form an association (section 101);

-- the requirement that at least 15 founding members must be Kuwaiti in order to establish a trade union (section 102(1));

-- the requirement that a certificate of good conduct be obtained by each founding member from the Ministry of the Interior before a trade union may be established (section 103(e));

-- the reversion of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution (section 110).

The Committee again requests the Government to take the necessary measures without delay, and in any event, prior to the adoption of the draft law, to ensure that all the legislation, including the provisions referred to above that have been the subject of comments from the Committee for a number of years, is brought into conformity with the requirements of the Convention.

[The Government is asked to report in detail in 1999.]

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the information supplied by the Government in its reports as well as the information provided by a Government representative to the Conference Committee in June 1996, indicating that draft legislation (Bill) to amend or repeal certain provisions of the Labour Code (Act No. 38 of 1964), in order to bring it into conformity with the Convention, has been submitted to, and approved by, the Council of Ministers and is currently undergoing other procedures.

While noting with interest that this Bill, which was drawn up with ILO technical assistance, removes certain restrictions on freedom of association contained in current legislation, the Committee observes that divergencies still remain between the Bill and the Convention on the following points:

- the requirement of at least ten Kuwaiti employers to form an association (section 101);

- the requirement that at least 15 founder members must be Kuwaiti in order to establish a trade union (subsection 102(1));

- the requirement that a certificate of good conduct be obtained by each founder member from the Ministry of Interior before a trade union may be established (section 103(e));

- the reversion of trade union assets to the Ministry of Social Affairs and Labour in the event of dissolution (section 110).

The Committee would request the Government to take the appropriate steps shortly, and in any event before the adoption of the draft legislation in order to ensure that the above-mentioned provisions, which have been the subject of the Committee's comments for several years, are brought into line with the requirements of the Convention.

Furthermore, the Committee notes the Government's statement that section 2 of the Labour Code concerning the exclusion of certain categories of workers from the scope of the Code has been repealed and replaced by a draft text which is contained in the Bill. The Government adds that section 12 of the Bill takes into account the Committee's previous observations on sections 71, 72, 73, 74, 79, 80 and 86 of the Labour Code.

The Committee requests the Government to provide a copy of the draft texts that replace sections 2, 71, 72, 73, 74, 79, 80 and 86 of the Labour Code along with its next report. It would further request the Government to indicate in its next report whether the Bill, which it hopes will be adopted shortly, amends or repeals section 88 of the Labour Code concerning restrictions on the free exercise of the right to strike.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes with regret that the Government's report contains no new information. It is therefore bound to repeat the comments it has been making for several years on the need to appeal or amend the following provisions of the Labour Code (Act No. 38 of 1964):

(a) -- the exclusion from the scope of the Code of employees of the State and public sector, fixed-term workers employed by the State under the regulations concerning the employment of Indian and Pakistani citizens, domestic workers and employees holding similar positions, and seafarers (section 2);

-- the requirement of at least 100 workers in order to establish a trade union (section 71) and ten employers to form an association (section 86);

-- the requirement that non-Kuwaiti workers must reside in Kuwait for five years before being able to join a trade union, and the requirement that a certificate of good reputation and good conduct be obtained in order to join a union (section 72);

-- 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 to establish a union (section 74);

-- the prohibition on the establishment of more than one trade union for a particular establishment or activity (section 71);

which are contrary to Article 2 of the Convention which provides that workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization. The Committee also recalls that workers must be able, if they so wish, to establish trade unions outside the existing trade union structure;

(b) -- 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 organizations 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;

which are contrary to Articles 5 and 6 under which workers' and employers' organizations shall have the right to establish federations and confederations. The Committee emphasizes that trade union organizations must be able, if they so wish, to associate in federations and confederations outside the existing higher trade union structure;

(c) -- the denial of the right to vote and 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);

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

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

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

which are contrary to Article 3 which provides that workers' and employers' organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration without any interference by the authorities;

(d) -- the restrictions on the free exercise of the right to strike (section 88), which is contrary to the principle that workers and their organizations should be able to formulate their programmes in defense of their economic, social and occupational interests, which may include calling a strike, without interference by the public authorities (Articles 3 and 10).

The Committee once again urges the Government to indicate in its next report the measures taken to bring all the above-mentioned legislation into conformity with the requirements of the Convention and reminds the Government that it may request ILO technical assistance on these matters.

[The Government is asked to supply full particulars to the Conference at its 82nd Session.]

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the Government's report and the discussion which took place once again in the Conference Committee in 1995.

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 organizations 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 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);

(8) the exclusion from the scope of the Code of employees of the State and public sector, fixed-term workers employed by the State under the regulations concerning the employment of Indian and Pakistani citizens, domestic workers and employees holding similar positions, and seafarers (section 2) which results in denial of the right to organize of these categories of workers.

In a 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 and was to be submitted to the competent authority. A Government representative had even declared to the Conference in 1992 that his Government was going to endeavour to submit full information on the application of the Convention, including the revision of the Labour Code of 1964, which was one of the priorities of the competent authority, in order to reorganize the society of the country.

The Committee, like the Committee on the Application of Standards of the Conference in June 1995, notes the assurances given by a Government representative concerning respect for human rights and the determination to guarantee workers' rights. It observes with concern that no measure has been taken to reduce the considerable gap between domestic legislation and the guarantees provided by the Convention, particularly in regard to the right to association of foreign workers. The Committee urges once again the Government to ensure that domestic legislation should give all workers and employers, without distinction whatsoever, whether they are nationals or foreigners, public servants, domestic workers or seafarers, the right to join occupational organizations of their choice to defend their interests, including for workers, by striking, and for workers' and employers' organizations the right to join federations or confederations, to elect their representatives freely and to organize their management without interference from the public authorities in accordance with Articles 2, 3, 5 and 6 of the Convention.

The Committee recalls that ILO technical assistance is available for the drafting of legislation in conformity with the requirements of the Convention and requests the Government to communicate in its next report information on any progress made in the application of this Convention.

[The Government is asked to supply full particulars to the Conference at its 83rd Session.)]

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the information supplied by the Government in its report.

The Committee notes with regret that, despite the assurances given by the Government in its previous reports that it was undertaking a review of the national legislation with a view to bringing it into conformity with the requirements of the Convention, the Government has confined itself to reiterating the comments and information supplied previously.

In these conditions, the Committee is bound to recall that for several years its comments related to the need to repeal or amend the following provisions of the Labour Code (Act No. 38 of 1964):

(a) - the exclusion from the scope of the Labour Code of employees of the State and the public sector, fixed-term workers employed by the State under the regulations concerning the employment of Indian and Pakistani citizens, domestic workers and employees holding similar positions, and seafarers (section 2);

- the requirement of at least 100 workers in order to establish a trade union (section 71) and ten employers to form an association (section 86);

- the requirement that non-Kuwaiti workers must reside in Kuwait for five years before being able to join a trade union, and the requirement that a certificate of good reputation and good conduct be obtained in order to join a union (section 72);

- 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 to establish a union (section 74); and

- the prohibition on the establishment of more than one trade union for a particular establishment or activity (section 71),

which are contrary to Article 2 of the Convention, which provides that workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization. The Committee also recalls that workers must be able, if they so wish, to establish trade unions outside the existing trade union structure;

(b) - 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 organizations and their federations from forming more than one general confederation (section 80); and

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

which are contrary to Articles 5 and 6, under which workers' and employers' organizations shall have the right to establish federations and confederations. The Committee emphasizes that trade union organizations must be able, if they so wish, to associate in federations and confederations outside the existing higher trade union structure;

(c) - 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);

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

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

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

which are contrary to Article 3, which provides that workers' and employers' organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration without any interference by the authorities;

(d) - the restrictions on the free exercise of the right to strike (section 88), which is contrary to the principle that workers and their organizations should be able to organize their activities and formulate their programmes in defence of their economic, social and occupational interests, which may include calling a strike, without interference by the public authorities (Articles 3 and 10).

The Committee recalls in this respect that any restrictions to, or prohibition of, the right to strike should be confined to public servants exercising authority in the name of the State or to essential services in the strict sense of the term, that is services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see 1994 General Survey on Freedom of Association and Collective Bargaining, paras. 158 and 159).

The Committee requests the Government to indicate in its next report the measures which have been taken to bring the whole of the above legislation into conformity with the requirements of the Convention.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee, while noting that the Government's report has not been received, takes note of the discussion which took place in the Conference Committee in 1992, during which a government representative stated that his Government would make every effort to submit sufficient information concerning the application of the Convention.

The Committee therefore requests the Government to indicate in its next report whether the draft Labour Code, referred to by the government representative, would be applicable to the following categories of workers who are currently excluded from the scope of the Labour Code, Act No. 38 of 1964 (section 2) in violation of Article 2 of the Convention: state and public service workers; fixed-term workers employed by the State under the regulations concerning the employment of Indian and Pakistani citizens; domestic workers and employees holding similar positions; and seafarers, or to communicate any new Act or regulation which would grant these workers the right to organize.

[The Government is asked to report in detail for the period ending 30 June 1993.]

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee, while noting that the Government's report has not been received, takes note of the discussion which took place in the Conference Committee in 1992.

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 organizations 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).

In a 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. The Committee notes from the Conference discussions that the Committee which had been set up in Kuwait in order to carry out a final study on drawing up a draft Labour Code, had finished studying the draft Code which was being submitted to the competent authority. According to a government representative, the Government would make every effort to submit sufficient information concerning the application of the Convention and to make the revision of the Labour Code of 1964 one of the priorities of the competent authority in order to reorganize the society of the country.

The Committee accordingly trusts that the Government will take the necessary measures to bring its legislation into full conformity with the Convention in the very near future and requests the Government to keep it informed of developments in this respect. The Committee further requests the Government to provide it with a copy of the draft Labour Code along with its next report.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee takes note of the Government's report. It observes that it contains no reply to the points raised in its previous direct request which read as follows:

In a previous direct request, the Committee noted that the Labour Code, Act No. 38 of 1964 (section 2), did not apply to certain categories of workers, including State and public service workers; fixed-term workers employed by the State under the regulations concerning the employment of Indian and Pakistani citizens; domestic workers and employees holding similar positions; and seafarers.

The Committee once more requests the Government to communicate any new Act or regulation which would grant these workers the right to organise, since they should enjoy this right under Article 2 of the Convention.

Observation (CEACR) - adopted 1992, published 79th ILC session (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.]

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

In a previous direct request, the Committee noted that the Labour Code, Act No. 38 of 1964 (section 2), did not apply to certain categories of workers, including: state and public service workers; fixed-term workers employed by the State under the regulations concerning the employment of Hindu and Pakistani citizens; domestic workers and employees holding similar positions; and seamen.

The Committee once more requests the Government to communicate any new Act or regulation which would grant these workers the right to organise, since they should enjoy this right under Article 2 of the Convention.

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.