Nouvelle loi du travail au Koweit (23 Décembre 2009)

Source: Arab Times - Abubaker A. Ibrahim and Agencies

KUWAIT CITY, Dec 23: The Kuwaiti parliament passed a new labour law on Wednesday that grants better rights and conditions for the 2.3 million foreign workers but does not scrap the controversial sponsor system. The new law, approved unanimously by lawmakers including Cabinet members, replaces a 45-year-old law that was criticised as being favourable to employers at the expense of workers.

The legislation provides more rights for workers in the private sector, including better annual leave, end of service indemnities and holidays.

It also sets tougher penalties, including jail terms, for businessmen who trade in visas or who recruit expatriate workers and then fail to provide them with jobs, or who fail to pay salaries regularly.

Kuwait is home to 2.3 million foreigners, more than two-thirds of them Asians, and 1.1 million citizens.

The bill requires the government to introduce a minimum wage for certain jobs, especially in the lower-paid categories.

During the debate, several MPs criticised the old law as being oppressive to labourers and favourable to employers.

The new law, however, fails to address the much-criticised sponsor system under which all foreign workers must be sponsored by a Kuwaiti employer, thus keeping expatriates at the mercy of their bosses.

Other oil-rich Gulf states apply similar systems.

Nevertheless, the law requires the government to set up a public authority that takes on the responsibility of recruiting workers from abroad.

Minister of Social Affairs and Labour Mohammed Al-Afasi has repeatedly said that the country was considering a gradual end to the system to meet international labour standards, but little action has been taken so far.

All 49 members of the Parliament, on Wednesday, approved the Private Sector Labor Law in its second reading, after making a few amendments and referring it to the government for approval.

While deliberating on the law, the Parliament approved a proposal to grant a non-Muslim woman who has lost her husband a mourning period of 21 days, while a Muslim woman in the same situation would receive 4 months and 10 days.

It also agreed to grant a worker an annual leave of 30 days if he was employed with the company for nine consecutive months. In doing so, the parliament rejected the earlier proposal that reduced the leave period to 15 days after the first year, 21 days after the second year and 30 days after completion of five years in the company. It also agreed to grant three days leave to private sector employees on the occasion of Eid Ul-Fitr and Eid Al-Adha instead of two days, as mentioned in the health committee’s proposal.

Parliamentarians, however, voted against a proposal to establish an “Unemployment Fund”. While 30 members supported the setting up of this fund, 28 members voted against it.

It can be recalled that the Parliament had approved the law in its first reading in a session in August and had deliberated on amendments in November. The law, however, was not voted upon due to limited time.

Some of the amendments that were suggested in the earlier reading were granting working mothers a two-hour break to nurse their children, defining jobs deemed dangerous for women by the Ministry of Social Affairs and Labor and obliging employers to establish a nursery for children aged four years and below if there are 200 or more female employees in the organization. A proposal not to allow the suspension of any employee because of their ethnicity, religion or gender and to have a maximum of an eight-hour work day was also approved.

According to an explanatory note, the law, which consists of 7 chapters and 142 articles, will regulate the relationship between employers and employees. The law also aims to ensure a just and fair balance between the interests of the employer and employed as well as protecting both parties to have a positive impact on the national product. It is also expected to bring stability in work relations on a local and international level, especially through agreements signed by Kuwait with other countries.

The law includes employers’ and employees’ commitments, disciplinary penalties, end of work contracts, end of service bonus, periodic and sick leaves, items related to death, professional training and employment of women and teenagers and safety and health.

Members who voted in favor of the Private Labor Law are: Ahmad Al-Saadoun, Dr Aseel Al-Awadhi, Al-Saifi Mubarak Al-Saifi, Dr Bader Al-Shuraiaan, Dr Jama’an Al-Harbish, Dr Hassan Jowhar, Hussain Mizyed Al-Daihani, Hussein Al-Huraiti, Khalid Al-Adwah, Khaled Al-Tahoos, Khalaf Dumaitheer, Dulaihi Al-Hajri, Dr Rola Dashti, Salem Namian Al-Azmi, Saad Zunaifeer Al-Azmi, Saad Ali Khanfour Al-Risheedi, Saadoun Hammad Al-Otaibi, Shuaib Al-Muwaizri, Saleh Ashour, Saleh Al-Mulla, Dr Daifallah Buramiya, Adel Al-Saraawi, Abdulrahman Al-Anjari, Adnan Al-Mutawwa, Askar Al-Enizi, Ali Al-Deqbasi, Dr Ali Al-Omair, Ghanim Al-Mae’a, Dr Fadhel Safar Ali Safar, Falah Al-Sawagh, Faisal Al-Duwaisan, Dr Faisal Al-Muslim Al-Utaibi, Mubarak Al-Khurainej, Mubarak Al-Waalan, Mohammed Al-Mutair, Dr Mohammad Mohsen Al-Baseeri, Dr Mohammad Mohsen Al-Afasi, Dr Mohammed Al-Huwaila, Mohammed Hayef Al-Mutairi, Mikhled Al-Azmi, Marzouk Al-Ghanim, Musallam Al-Barrak, Mustafa Al-Shamali, Dr Maasouma Al-Mubarak, Dr Mudhi Abdulaziz Al-Humoud, Naji Al-Abdulhadi, Dr Hilal Musaed Al-Sayer, Dr Waleed Al-Tabtabaie and Dr Yousef Al-Zalzalah.

Amendments

Following are the major amendments to the old labour law:

Article (9): A public authority will be established with judicial personnel and independent budget and will be named Public Authority for Work Force (PAWF). The authority will be under the supervision of Minister of Social Affairs and Labor. The authority will also be under the Ministry of Law, which will oversee the hiring and employment of expatriate workers based on demands by employers. A law to organize the authority will be issued within a year after the law is enforced.

Article (10): The employer is prohibited from employing expatriate workers without due permission from the concerned party. The ministry will issue the decision regarding the hiring procedures, required documents to be submitted and the fees to be paid to the ministry by the employer. If an employer’s request is rejected, the reasons for the rejection will have to be furnished in detail. The company’s capital should not be produced as a reason for rejection.

The employer is not allowed to bring workers from abroad or take people from the local market without providing them with job. If the employer does so, he will have to bear the full cost of sending the employee back to his or her home country. In case the employee absconds and joins another employer, the responsibility of repatriating the employee will fall on the second employer.

Article (21): Female workers are not allowed to work in the night starting from 10 pm till 7 am the following day, except at hospitals, clinics, private medical centers and other institutions that are granted permission by the Minister of Social Affairs and Labor. This article is not applicable to the special working hours during Ramadan.

Article (17): An apprentice or a trainee employee should work for the employer throughout the training period and for a maximum of five years. If the employee fails to fulfill this term, the employer has the right to demand compensation for the cost of training and the cost commensurate to the years of output of the trainee.

Article (22): It is not allowed to employ female workers in dangerous work atmospheres, and places that are hazardous to health. The female workers are not allowed to work in places that can affect public morality. Female workers are prohibited from working at places exclusive to men. The ministry will issue a decision to define such work environments after due consultation with labor organizations and concerned organizations.

Article (24): A working mother will be granted two hours every day from her working hours for breastfeeding. The conditions for this will be further defined by the ministry. Companies having more than 50 female employees or 200 mixed employees should provide crèche facilities for children under four.

Article (45): It is not allowed to terminate the service of an employee without proper reason, or on grounds of the employee’s sex, race or religion.

Article (51): The worker will get complete end-of-service indemnity if the service ends due to one of the following conditions:

1. If the employment contract is terminated by the employer
2. If the employment contract ends without being renewed
3. If employment contract ends according to articles (47, 48, 49) of the law
4. If the female employee terminates the contract from her side due to marriage within a year from her marriage date.

Article (55): The employee is entitled to a basic salary, in addition to other emoluments defined in the employment contract. The social and children’s allowances, according to Law 19/2000, are considered as part of the salary.

Article (52): The employer deserves half of the compensation at the end of the employee’s service, if the contract is terminated by the employee, and if the employee has served only between three and five years. If the employee has served the company for five to ten years, the employee is entitled to a third of the compensation. Beyond 10 years, the employee gets full compensation.

Article (56): The employer is required to use his workers according to the labor law and should pay their salaries into their accounts in their banks. The salary statements should be sent to the Ministry of Social Affairs. The cabinet will issue a decision on the regulations related to salary accounts based on a report that will be submitted by the Minister of Social Affairs and Labor and Minister of Finance to define.

Article (63): It is not allowed to make the worker work for more than 48 hours a week or eight hours a day, except under conditions mentioned in the law. The working hours in Ramadan are 36 hours per week, and it is permitted to reduce the working hours further under the hard labor category, or for labor that is hazardous to health. The reduction in working hours can be attained through a decision by the minister of social affairs.

Article (67): The employee deserves 24 hours of continuous rest after every six working days. The employer is allowed to use the worker during his rest day on the condition that the worker gets a full day’s pay, plus a bonus of 50 percent of the day’s salary, and a day off to compensate for the missed weekend.

A day’s salary is calculated by dividing the worker’s monthly salary by the total number working days in a month excluding the weekends.

Article (68): The following official holidays are to be considered a fully-paid holidays.

1. Hijri (New Year) – 1 day
2. Al Isra and Mi’raj – 1 day
3. Eid Al Fitr – 3 days
4. Arafa – 1 day
5. Edi Al Adha – 3 days
6. Prophet’s birthday (PBUH) – 1 day
7. National Day – 1 day
8. Liberation – 1 day
9. New Year – 1 day

In case the employer works on any of these holidays, he or she must be paid double the day’s salary and must be given a day off at a later date to compensate for the missed holiday.

The employee is entitled to the following sick leaves in a year:

1. First 10 days – full pay
2. Second 10 days – three-quarter pay
3. Third 10 days – half pay
4. Fourth 10 days – quarter pay
5. The following 30 days – without salary

The employee must submit the medical certificate from a doctor or head of public health unit to enjoy the sick leave privileges. In case of a dispute over the validity of the sick-leave claim, the medical certificate will be the final deciding factor.

The minister will issue a decision defining illnesses that fall under the category of chronic diseases.

Article (71): The employee is entitled to 30 days of annual leave. The employee cannot take leave until he completes nine months in the service. The official holidays and sick leaves will not be considered as part of annual leave.

Article (76): An employee who has completed 2 years in the service will be entitled to 21 days leave to perform Haj, provided it is the employee’s first Haj in life.

Article (77): If the first or second degree family member of the employee is deceased, the worker gets three-days of fully paid leave.

A Muslim female employee is entitled to a fully-paid leave of 4 months and 10 days on the occasion of her husband’s death. She is not supposed to work anywhere else during this leave period. A non-Muslim female employee is entitled to 12 days leave for the same reason. The minister will issue a decision to give the finer details of this clause.

Article (96):

1. In the case of an employee contracting Tuberculosis, a doctor or a medical committee will study the patient to decide the degree of responsibility on the employer(s) for the worker’s condition.

2. The Tuberculosis-afflicted worker is entitled to compensation from the Public Authority for Social Security or the insurance company that has insured the employee. The worker’s employers, based on the study mentioned in section 1 of Article 96, will be held to account for the worker’s health condition.

Article (98): All the Kuwaiti workers have the right to form unions for their welfare. The employers are also entitled to form unions for their welfare.

Article (100): The following procedures are to be followed in establishing workers unions and employers unions.

1. The employees or employers willing to establish a union should convoke a general assembly to found the union by advertising in the dailies, at least two weeks ahead of the assembly, with the location, time and objectives specified.

2. The general assembly must issue the regulations for the functioning of the union, in accordance with the decision of the minister.

3. The general assembly must elect the board members.

Article (133): The ministry will assign certain positions in a company to ensure the labor laws are enforced. These persons will have to take an oath in front of the minister to carry out their duties.

Article (138): The punishment for violating section of 3 of Article 10 is imprisonment not more than 3 years and/or fine not less than KD 1000 and not more than KD 5000.

Article (149): The minister is obligated to issue the procedures and regulations to enforce this law in six months from the day of its publication in the newspapers.

Article (63): The minister should issue decision every five years defining the minimum wages for a job according to the inflation in the country.

Article (144): The minister will issue a decision to form consultation committee for labor affairs that includes representatives from the Ministry and the Government Manpower and Restructuring Program, representatives of employers and employee unions, in addition to any other personalities that the minister deems fit to join.

Speaking to reporters following the vote, Minister of Social Affairs and Labor Mohammad Al-Afasi hailed the bill as a “historic achievement”.

By adopting this law, Kuwait should be an example for others to follow at international labor organizations, the minister said.

The law shall regulate the relationship between employers and employees, he added.

It ensures a just and fair balance between the interests of the employer and the employee, thus coping with similar international pieces of legislation, he pointed out.

Meanwhile, the National Assembly approved at its session on Wednesday referring the citizens loans bill to the specialized panel for examining the proposed amendments.

Al-Busairi said in a statement that the government requested that the bill be placed back at the table of the committee for examining the proposed modifications in line with Article 105 of the National Assembly by-law.

The government request touched off a heated debate at Abdullah Al-Salem Hall between opponents and supporters of the proposal, prompting the chairman of the session, the Deputy Speaker, Abdullah Al-Roumi, to call off the session for 15 minutes. But when the MPs re-convened the session, they approved the previous proposal and Al-Roumi called for an hour recess pending the committee’s conclusion of its examination of the proposed law.

A clarification memorandum attached to the bill genuinely proposes that the state “takes the responsibility of the value of the interests and accumulating returns, and lifting them off the shoulders of the citizens by instructing the banks and the investment companies to re-schedule assets of the concumption loans after cancelling the interests and the returns and regulating the mechanisms of the lending in the future.” It proposes re-scheduling the consumer and installment loans till September 30 after writing off all interests, provided that the debts would be paid on monthly basis at an equal sum at a rate not exceeding 35 percent of the monthly salaries of the indebted citizens.

The articles of the bill also stipulate that the creditors shall withdraw any libel suit they might have filed against the indebted citizens, regulating future lending, abstaining from punitive meausures such as travel ban, compelling the creditors to file a report about the scheduled clients’ debts for submission to the Central Bank of Kuwait where the scheduling exceeds 15 years. It also proposed allowing the client to notify the CBK about any law violation, provided that the latter shall report back in three months.

Moreover, it proposes granting the CBK supervisory authority to cross-examine legality of the loan interests.

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By: Abubaker A. Ibrahim and Agencies