Texts of pending comments

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.

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.

Scope of application of the Convention. Migrant and domestic workers. In its observations concerning the application of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) in Kuwait, the Committee has noted that pursuant to section 99 of the Labour Law, the right to establish trade unions is restricted to Kuwaiti workers. Furthermore, Order No. 1 of 1964 subordinates the exercise of the right of migrant workers to join workers’ organizations to the possession of a valid work permit and a minimum of five years’ residence in the country. The Committee notes that these legal restrictions on the right to organize seriously impede the exercise by migrant workers of all rights enshrined in the Convention. Furthermore, the Committee has noted that domestic workers are excluded from the scope of the Labour Law and Law No. 68 of 2015 on Employment of Domestic Workers does not contain any provisions concerning the right to organize and collective bargaining. In its previous observation, the Committee had requested the Government to take all necessary measures to ensure the recognition of these rights for all migrant and domestic workers. It notes with regret that the Government does not indicate any measures taken in this regard, neither has it provided information on the way migrant and domestic workers exercise these rights in practice. In view of the foregoing, the Committee urges the Government to take all necessary measures, including legislative reform, to ensure the full recognition, in law and in practice, of the rights enshrined in the Convention for all migrant workers as well as for domestic workers. It also requests the Government to provide information on the way in which these workers exercise in practice the rights set out in the Convention, including information on trade union organizations established and collective agreements in force.

Articles 1 and 2 of the Convention. Adequate protection against acts of anti-union discrimination and interference. In its previous observations, the Committee had noted that beyond the general prohibition of anti-union dismissals, national legislation does not provide for effective procedures and dissuasive sanctions against acts of anti-union discrimination and interference. It had therefore urged the Government to take all the necessary measures to bring national legislation into conformity with the Convention. The Committee notes with regret that the Government does not indicate any measures taken in this regard. Therefore, it once again urges the Government to take all necessary measures to ensure that the legislation provides for the prohibition of all acts of anti-union discrimination and interference forbidden by the Convention, and to ensure that there are redress mechanisms that provide adequate protection, including effective procedures and dissuasive sanctions.

Article 4. Promotion of collective bargaining. Compulsory arbitration. In its previous observations, the Committee had noted that section 131 of the Labour Law gives the Ministry the power to intervene in a collective labour dispute without the request of any of the parties, and eventually refer the dispute to conciliation or arbitration while section 132 bans strikes during conciliation or arbitration proceedings initiated by the Ministry. The Committee had requested the Government to amend these provisions. The Committee notes that the Government indicates that in practice, it has never intervened in any dispute out of respect for the provisions of the Convention and it shall continue to do so in the future, except if the parties to a dispute request its intervention. The Committee once again recalls in this regard that compulsory arbitration in the framework of collective bargaining is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term (services whose interruption would endanger the life, personal safety or health of the whole or part of the population), and acute national crises. While noting the Government’s indication that the above-cited provisions are never applied in practice, the Committee recalls that State parties are required to ensure the conformity of their laws with the Convention. Therefore, it once again urges the Government to take all the necessary measures to amend sections 131 and 132 of the Labour Law, as well as other provisions on compulsory arbitration, to ensure their full conformity with the abovementioned principles and to provide information on any developments in this respect.

Promotion of collective bargaining. Application of the Convention in practice. In its previous observation, the Committee had requested the Government to provide information on its concrete measures to promote collective bargaining and to indicate the collective agreements concluded. The Government reports that it always encourages collective bargaining and provides the list of eleven collective agreements concluded during the 2014–20 period. The Committee notes that all these agreements concern the petroleum sector. Recalling that Article 4 of the Convention requires Governments to take measures to encourage and promote the full development and utilization of machinery for collective bargaining, the Committee requests the Government to indicate the concrete measures it has taken to promote and encourage collective bargaining in all economic sectors. It also requests the Government to continue providing information concerning the number of collective agreements concluded, specifying the sectors and the number of workers covered.

Articles 2 and 5 of the Convention. Adequate procedures. Effective tripartite consultations. The Committee notes the information submitted by the Government concerning the restructuring of the Higher Consultative Committee for Labour Affairs, the meetings it has held and the recommendations it has issued during 2020 and 2021. However, the Committee notes that, according to the information communicated by the Government, this body has not addressed any of the matters covered by Article 5(1) of the Convention. The Government reports that, although tripartite consultations through meetings are of paramount importance, it continues to conduct tripartite consultations in written form in view of the speediness and effectiveness of this form of consultation. The Government does not clarify whether the procedure followed to ensure tripartite consultations for purposes of the Convention has included meetings in one or more tripartite bodies, or whether the tripartite consultations required under Article 5 have taken place exclusively through written communications. With regard to the re-examination of unratified Conventions, such as Conventions Nos 100 and 122, and Recommendations to which effect has not yet been given, the Government indicates in general terms that the Public Authority for Manpower is still studying their compatibility with current legislation in Kuwait. The Committee notes that the Government has not provided any information about the content and outcome of any tripartite consultations held during the reporting period with respect to the matters concerning the activities of the International Labour Organization set out in Article 5(1) of the Convention. Hence, the Committee urges the Government to provide updated detailed information on the procedure, content and outcome of tripartite consultations held on the matters relating to international labour standards covered by the Convention as required under Article 5, including the frequency of such consultations. The Committee also once again requests the Government to indicate the manner in which it is determined that written consultations are sufficient to ensure effective tripartite consultations as required by the Convention.

Comments adopted by the CEACR: Kuwait

Adopted by the CEACR in 2021

C087 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C087 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C098 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

C144 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)