Nepal - Kuwait: Freedom of Association
Nepal’s Constitution recognises the fundamental right of workers to associate freely, form and participate in unions, and bargain collectively. The country’s Labour Act and Trade Union Act codify these constitutional rights in law, for workers in both the formal and informal sectors of the economy. The two Acts set out the process of formation of trade unions and collective bargaining committees, and outline a range of occupational rights for both self-employed and salaried workers across a number of industries. The Labour Act also protects workers’ right to strike following the failure of a mandatory 21-day mediation period, although it withdraws this right from employees in certain essential sectors such as healthcare, banking, transportation and security. Despite these gains, it falls short of international labour standards by failing to provide adequate protection against anti-union discrimination, promotion of collective bargaining and compulsory arbitration. Although politicised, Nepal’s workers’ movement is vibrant and has continued to grow in the past two decades, with unions generally being able to operate and engage publicly on labour reforms without state interference. The General Federation of Nepalese Trade Unions (GEFONT) is active in its efforts to protect the rights of Nepali migrant workers abroad, and has signed an agreement with partners in Kuwait that has succeeded in getting anti-union clauses removed from model employment contracts. Still, the International Trade Union Confederation (ITUC) has placed Nepal for the last two years in the category of countries that regularly violate trade union rights. This is the result of inadequate legal protections and an observed shrinking space for civil society in the country, with rising cases of arrests of trade unionists and other civil society actors.
Whilst the right to unionise is guaranteed under Kuwait’s Constitution, the implementing legislation restricts the right to establish trade unions to Kuwaiti nationals working in certain sectors. Although migrant workers are therefore prohibited from forming unions, there is no explicit legal prohibition on them joining unions – and, in comparison to other GCC countries, workers of all types in Kuwait enjoy a relatively greater degree of freedom of association. This is helped by the presence in the country of a small number of non-governmental groups actively campaigning to protect and advance migrant workers’ rights. The Kuwait Trade Union Federation, the umbrella organisation for the country’s unions, has publicly advocated for migrant worker rights and the abolition of the kafala system, and has actively cooperated with migrant community groups and trade unions in origin countries. Despite that, it has still shied away from public reporting of labour rights violations, or any criticism of the state itself. Indeed, the 2010 Private Sector Labour Law allows the government a great deal of control over the activities of unions, and their ability to campaign freely and independently. Unions face an overly broad prohibition on engaging in political, religious or sectarian issues. They can be dissolved if they are found to have violated public order and morals, and have to obtain governmental consent in order to accept donations. Unions require permission from the Ministry of Interior to strike, and there are no legal protections for strikers against retaliation. Indeed, Kuwait’s ratification of the ICESCR was accompanied by a reservation not to apply the covenant’s provisions on the right to strike. So great is the cumulative effect of these many restrictions, that some international observers have been led to state that trade union rights exist in Kuwait really only on paper, and the ITUC continues to class Kuwait as a country with “no guarantee of rights” for workers. Still, unauthorised strikes are largely tolerated, and a group of volunteer group of Filipino workers has recently been able to establish, with ILO’s support, the first membership- based organisation of migrant domestic workers in the Gulf following a decade of campaigning and organizing during which at least two of its members faced attacks seemingly on account of their activities.
Recommendations to the Government of Nepal:
- Ensure that worker organisations including trade unions are able to participate in the development and review of legislation relating to migrant workers, as well in review and oversight mechanisms related to bilateral agreements
- Ensure that diplomatic missions are tasked to protect any migrant worker in a destination state subject to retaliatory measures as a result of worker organising.
Recommendations to the Government of Kuwait:
- Amend the law to prohibit discrimination on the grounds of trade union membership or activities and guarantee the right the collective bargaining, in line with international labour standard.
- Ensure that worker organisations including trade unions are able to participate in the development and review of legislation relating to migrant workers, as well in review and oversight mechanisms related to bilateral agreements.
- Remove all legal restrictions on migrant workers’ right to strike and prohibit retaliatory actions against anyone exercising that right or any other action to peacefully promote migrant workers’ rights.
