Kuwaiti govt established department to protect domestic workers’ rights

Domestic workers under the sponsorship system

This is the first part of the Rights of Domestic Workers Between Legislative System and Enforcement through Law No. 38 of year 2015.

— Editor

impunity for traffickers and impeding the access of victims to justice) (6).

Fundamental principles and rights at work 2 according to international standards(7):

The full implementation of the fundamental principles and rights in the domestic labour sector is necessary in order to enable domestic workers and to ensure their access to decent work, as they are the most vulnerable to violations of these fundamental rights at work, given the historic links between domestic work and slavery and other forms of servitude, persisting patterns of discrimination based on sex, ethnicity, social origin and other grounds, and the fact that domestic work is often performed informally(8). These principles and rights were affirmed by ILO in the 1998 Declaration, which are Freedom of Association, the Right to Collective Bargaining, Effective Abolition of Child Labour, Effective Abolition of Forced Labour, and Elimination of Discrimination in respect of Employment and Occupation. These principles and rights were interpreted and developed in the form of rights and obligations specified in a number of conventions that are recognized as fundamental conventions (9) which apply to all workers. As referred to in Convention No. 189 on Decent Work for Domestic Workers, in which it emphasized its importance in the context of domestic labour. At its 86th Session in 1998, the International Labor Conference declared that all Member States shall be committed, once they were members of the ILO, to respect the principles of rights enshrined in the fundamental conventions, and also since the organization is committed to helping the Member States to the fullest extent in order to achieve these goals through the provision of technical cooperation and advisory services, and support States’ efforts in respecting these principles and their efforts in providing environment conducive to economic and social development(10).

Legal framework for domestic workers in Kuwait a) National context: The work of domestic workers previously involved weak protection measures, and the focus pivoted on the working mechanism of recruitment offices more than on regulating the work of domestic workers and granting them enforceable rights such as Decree-Law No. 40 of year 1992 concerning the regulation of recruitment offices., and Ministerial Decision No. 617 of year 1992 regulating the rules and procedures for obtaining licenses for the private recruitment agencies(11). One of the most salient provisions of the decision was that the office shall be committed to concluding a tripartite contract between the office, the employer and the domestic worker, in which the obligations and rights of each of them is determined according to the contract sample prepared by the General Department of Immigration.

Law No. 68 of year 2015 regarding domestic labour and the regulations and decisions pertaining thereto:

The State of Kuwait promulgated Law No. 68 of year 2015 regarding domestic labour, which is the main focus of our study. The law was intended to remedy legislative gaps related to the regulation of domestic workers’ affairs, as the Labour Law No. 6 of year 2010 in the Private Sector did not apply to them.

The law is deemed as a significant pioneering step because for the first time, domestic workers were granted enforceable rights, such as the right to a weekly rest day, one-month paid annual leave. Additionally, the number of working hours was set to 12 hours a day with a one-hour break, provided that working continuously does not exceed five hours per day followed by a rest period no less than one hour and a at least eight hours of continuous night rest(12). As it stipulated the end-of-service benefit estimated at a one-month salary for each year worked that shall be due at the end of the contract, in addition to other rights, among which the employer shall be required to provide adequate housing, food, clothing and treatment for domestic workers. It also guarantees, by judicial remedies, the collection of their unpaid wages. In most of its provisions, the law focused on regulating the work of recruitment offices and their obligations towards the government, employers and workers, and prohibits them from charging fees to domestic workers, or the like, inside or outside Kuwait, directly or indirectly, in return for employing them or keeping them with their employer. In the event that the receipt of any amount of money is proven, the licensed office shall be penalized under the Penal code for the crimes of extortion and unlawful gains. However, the law is not without loopholes which significantly affected the mechanisms of its implementation in the past, especially when not explicitly imposing dissuasive penalties commensurate with the size of the violation. This has been further confirmed by the Department of Domestic Labour(13), entrusted with the implementation of the law, acknowledging the incapacity to impose penalties on employers in the event of any violations against domestic workers, such as confiscating passports, or forcing them to work, or refraining from giving them their weekly rest among other irregularities, due to the absence of a legal basis to this end. All that it can do is to prohibit the employer from recruiting workers for a period of six months, and in the event that the violation is repeated, the prohibition period shall be extended to one year(14). Furthermore, the law does not expressly provide for the possibility of workers leaving the house during their free time, as it did not address the working hours during which domestic workers are not free to dispose of their time as they please and remain at the disposal of the household in order to respond to possible calls(15).

The Ministry of Interior issued ministerial decisions implementing and supplementing the provisions of the Domestic Labour Law, which are Ministerial Order No. 2194 of year 2016 regarding the Implementing Regulations of Law No. 68, and Ministerial Order No. 2302 of year 2016 on the Rules and Procedures of enforcement of the Provisions of Law No. 68/2015 regarding Domestic Labour. These decisions included details regarding certain articles, elaborating the working hours, breaks, overtime, stating a minimum wage equal to 60 Dinars (equivalent to 200 USD) as well as the responsibility of the employer and recruitment agencies, in addition to the samples for the bilateral contract (worker – employer) and tripartite contract (worker – employer – recruitment office) but fail to add much substance to the law. Nevertheless, establishing the rate of minimum wage on the basis of the nationality of the domestic workers is still prevalent. However, they did not contain articles emphasizing the need for the implementation of the law, as they did not impose dissuasive penalties on offenders. Rather than proactively protecting and guaranteeing workers’ rights, the law and its regulations offer only the slim potential to compensate to workers who manage to navigate the arduous road to lodging and seeing through a complaint(16).

Law No. 91 of 2013 on Combating Trafficking in Persons and Smuggling of Migrants:

Law No. 91 of 2013 on Combating Trafficking in Persons and Smuggling of Migrants set forth, through the definition of Trafficking in Persons, the practices that clearly constitute the elements of a crime(17). It stated that the individuals involved in trafficking in persons shall be sentenced to up to fifteen years, and has imposed more severe sanctions amounting to life imprisonment in the event that the crime was committed by an organized crime group or if the accused joined or contributed to establishing, organizing or running this group while aware of its purposes, or if the crime had a nonnational element, or if the perpetrator is related to the victim, or if the crime was committed by a person using a weapon, or if the crime significantly harmed or permanently disabled the victim, or if the accused holds a public position in the country in which the crime was committed and this position played any role in facilitating the commission or execution of the crime, or if the victim was a child, a female or a person with special needs. The law also imposed a heavier punishment, namely the death penalty, in the event that the victim is killed as a result of the crime(18).

The public prosecution shall be responsible for the characterization of the crimes of trafficking in persons through investigation, assessment and prosecution(19) based on preliminary findings submitted by law enforcement agencies, such as the Public Moral Protection & Anti Human Trafficking Department, and the labour inspectors in the Public Authority for Manpower.

In implementing the provisions of Law 91, a lighter penalty shall not be imposed in accordance with Article (83) of the Penal Code(20), or order the suspended execution of a sentence or refrain from pronouncing a sentence to any of the crimes stipulated in this law(21).

What is unfortunate is the failure to stipulate the establishment of a national mechanism to combat the trafficking in persons that contributes to the coordination of efforts in combating this crime, in cooperation with civil society organizations and international organization to develop a national plan to combat the crime of trafficking, the failure to stipulate the establishment of specialized departments within the office of the public prosecution, and the failure to grant broad and appropriate powers to the enforcement authorities. This is what we have experienced in the Kuwait Society for Human Rights through the complaints and reports we have received regarding suspected cases, such as at trafficking crimes, and we have contacted the Public Moral Protection & Anti Human Trafficking Department to notify them, but to no avail, since they must obtain the permission of the deputy prosecutor to carry out the inspection.

Law No. 17 of year 1959 on the Residence of Foreigners:

Law No. 17 of year 1959 on the Residence of Foreigners remain the fundamental law that regulates the legal residence of migrant workers in general, since all migrant workers are required to have a local sponsor through direct personal sponsorship for domestic workers called “Domestic Servant Visa” Article 20(22), or an indirect sponsorship through a legal person such as companies or institutions for workers in the private sector. The law requires that the sponsor shall be the employer, and working for someone other than the sponsor is unlawful, otherwise he shall be considered as violating the law. The employer shall be responsible for ensuring the validity of the domestic worker’s visa and shall renew it periodically upon expiration. In the event that the domestic worker absconds, the employer shall be entitled to notify the Ministry of Interior within one week(23). This notice entails the revocation of the worker’s visa and the issuance of an order to arrest and detain them, to be later deported to their country. In the event that the domestic worker resorts to the Department of Domestic Labour to lodge a complaint against the employer, the latter, in this case, cannot file an absconding notice against the worker. This law confers broad powers on the sponsor, and it is unfortunate that it fails to provide effective protection guarantees to domestic workers, as it also fails to give workers the right to resort to justice and appeal against the deportation or expulsion order, which is called administrative expulsion(24).

Domestic workers are not entitled to change their employer, since they must obtain the consent of their employer, through a signed waiver transferring the sponsorship to another employer.

Law No. 69 of 2015 Concerning the Establishment of a Closed Joint Stock Company for the Recruitment and Employment of Domestic Workers:

Law No. 69 of 2015 includes the Establishment of a Closed Joint Stock Company for the Recruitment and Employment of Domestic Workers. It is committed to developing a basic regulation to regulate the working conditions of the categories working in all types of domestic and family care services, and in a manner guaranteeing the payment of fair wages, provision of health services and medical treatment, and including them in the recruitment contracts. The company is managed by a Board of Directors as representatives of the shareholders and an Advisory Board composed of representatives of the Ministry of Interior, Ministry of Health, and General Authority for Manpower.

The company shall be committed to qualifying and training workers in specialized centers before entering the country. After the promulgation of the law in 2015, the establishment of a joint stock company for recruitment (Al Durra Company) was delayed until 2018, when it started recruiting the first group of Sri Lankan domestic workers equal to 450 workers approximately, the second group being on its way in the next few days(25).

These workers were trained and qualified in Sri Lanka during the period in which travel formalities were being carried out by the agencies contracted with Al Durra. The training lasted for a period of one month. The Company is currently working on a number of employment contracts to recruit domestic workers from the Philippines and India, where it has been in contact with (6) recruitment agencies within India(26).

According to an ILO study issued on 2016 on the challenges faced by domestic workers, the current practices of private recruitment agencies that charge low-skilled migrant workers amounts of money enormously exceeding the ceiling allowed by the governments of the mother countries, are at the core of the fraudulent behavior within the recruitment sector(27)

Therefore, the Establishment of a Joint Stock Company for the Recruitment of Domestic Workers is expected to help in the prevention of the exploitation and the human trafficking of domestic workers.

The Decision of the Council of Ministers No. 614 of year 2018 on the transfer of the powers of the Department of Domestic Labour to the Ministry of Social Affairs and the General Authority for Manpower:

The decision of the Council of Ministers No. 614/2018 included the transfer of powers, stated in law No. 68/2015 regarding domestic labour, from the Ministry of Interior to the Ministry of Social Affairs, Ministry of Labour, and the General Authority for Manpower, while maintaining the existing applicable regulations and decisions, until they are amended or abolished as a step to equalizing the rights of domestic workers with the other categories of workers, through their registration with the General Authority for Manpower(28).

However, it seems that the General Authority for Manpower was not yet ready to assume its functions and competencies by fully supervising domestic workers, requesting a transition period not exceeding the end of the current fiscal year on 31/03/2019, in order to address all aspects related to transferring domestic workers from the Ministry of Interior to the General Authority for Manpower, with the Ministry of Interior proceeding with carrying out the powers stated in Law No. 68 regarding Domestic Workers during the transition period(29).

Decision of the Council of Ministers No. (1036)(30) approving the request of the General Authority for Manpower for a transition period ending on 31/03/2019:

The Council of Ministers approved the request of the General Authority for Manpower for a transition period that ends on 31/03/2018, to address all aspects related to the transfer of powers related to domestic workers from the Ministry of Interior to the General Authority, with the Ministry of Interior proceeding with carrying out the powers stated in Law No. 68 regarding Domestic Workers until the date mentioned above.

b) Regional and international context:

The State of Kuwait ratified the Arab Charter on Human Rights through law 84/2013 dated 14/02/2013. The Charter recognizes that every worker has the right to the enjoyment of just and favorable conditions of work, regulating working hours, rest and holidays with pay, as well as the rules for the preservation of occupational health and safety and the protection of women, children and disabled persons in the place of work.

Each State party shall ensure the necessary protection of migrant workers in accordance with the laws in force(31). Kuwait has been an ILO member State since 1961. Since its accession, it has ratified 19 ILO conventions (32), including seven of the eight Fundamental Conventions, which constitute the Fundamental Principles and Rights at work (mentioned above). However, the convention, among the Fundamental Conventions, that Kuwait has not ratified is the Convention C100 – Equal Remuneration Convention, 1951 (No. 100).

Therefore, Kuwait shall be committed to respecting, promoting and enforce the rights contained in all the Fundamental Conventions, even if not all of them have been ratified under the 1998 Declaration.

Kuwait also ratified international charters and conventions on Human Rights(33), which require it to give full effect to the rights contained in these conventions and to all individuals present on its territory, ranging from citizens to migrants, including domestic workers.

The International Covenant on Civil and Political Rights, ratified by Law 12/1996, states that each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind(34), and no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment(35), and no one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited(36), and all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground(37).

The Human Rights Committee, through its concluding observations to Kuwait(38) in 2016, expressed its concern regarding the discrimination, exploitation and abuse of foreign domestic workers, which is exacerbated by the sponsorship (kafala) system; the discrepancies between the rights afforded to domestic workers, the majority of whom are foreigners, under Law No. 68/2015 and the rights provided to other workers; and information indicating that cases of violence against domestic workers are underreported owing to fear of reprisal from the sponsor, the loss of livelihoods and the risk of deportation(39), as it also stated that, despite the Law 68/2015 stipulates the prohibition on withholding workers’ passports, the practice remains common among employers and sponsors of foreign workers(40). The International Covenant on Economic, Social and Cultural Rights ratified by the State of Kuwait by Law 11/1998 states that everyone has the right to the enjoyment of just and favorable conditions of work that ensures remuneration which provides all workers, as a minimum, safe and healthy working conditions and Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays(41). The Committee on Economic, Social and Cultural Rights, through its concluding observations(42), expressed its concern as to whether the minimum wage of KD 60 (approximately US $200) per month enables a decent living for the workers and their families(43). The Committee recommended that the State party raise awareness among employers and the population in general of the need to respect the human rights of domestic workers(44).

The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the State of Kuwait by Law 33/1968 undertook to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction, as well as the right to just and favorable conditions of work(45).

The concluding observations of the Committee on the Elimination of Racial Discrimination to Kuwait in 2017 regarding domestic workers stated that (it remains alarmed by reports that some foreign domestic workers face serious physical, verbal and sexual abuse by employers. The Committee is concerned by the lack of precise information concerning the outcome of complaints by foreign domestic workers of abuse, penalties under the Law and relevant enforcement mechanisms. It also expresses its concern that employers are allowed to retain foreign workers’ personal identification documents with the workers’ consent, as the nature of the employer-employee relationship means that workers’ consent may not be freely given. The Committee further notes with concern the information provided by the State party to the effect that, in 2015, the Department of Domestic Labour received 2,487 complaints demanding the return of passports, and also remains concerned that foreign domestic workers in disputes with their employers are often deported by administrative decisions, without a reasoned court order or possibility of appeal(46).

The Convention On the Elimination of All Forms of Discrimination Against Women, ratified by the State of Kuwait by Amiri Decree 24/1994, affirmed the elimination of discrimination against women in the field of employment in particular the right to work as an inalienable right of all human beings and the right to the same employment opportunities, including the application of the same criteria for selection in matters of employment(47).

The Committee on the Elimination of Discrimination Against Women, in its concluding observations to Kuwait in 2017, welcomed the progress achieved in undertaking legislative reforms, and in particular the adoption of several laws, including Law No. 68 of year 2015 regarding domestic workers, which strengthens the rights of women domestic workers and provides them with social and legal protection and healthcare(48), then it stated the presence of (legal gaps contained in Law No. 68 of year 2015 regulating domestic work to effectively protect domestic workers from abuse, exploitation and violence, including the lack of labour inspection mechanisms; weak penalties imposed on labour recruitment firms for abusive practices; the tying of the immigration status of the domestic workers to one employer or sponsor, and requiring the Ministry of Interior to deport a worker who left his work place the absence of sanctions applied to employers for withholding the passports of domestic workers or fail to provide adequate housing, food, medical expenses, daily breaks or weekly rest days; the absence of a requirement for employers to be present in dispute resolutions between employer and domestic worker, as well as the absence of complaint mechanisms)(49).

The Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by the State of Kuwait by virtue of Law No. 1/1996, stated that each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction(50).

While the Committee against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment, which monitors the implementation of the Convention, expressed concern about the reports of exploitation, of ill-treatment and torture against individuals, and other abuse of numerous foreign workers from various countries by their employers, in particular domestic workers, who work under the sponsorship system and the legal provisions regulating it and which includes long working hours without rest, deprivation of food, threats, physical or sexual abuse, restriction of movement such as confinement to kidnapping in the workplace, confiscation of passports and other personal documents and non-payment of wages, which may amount to forced labour ad resemble slavery(51).

Furthermore, Kuwait ratified the United Nations Convention against Transnational Organized Crime by virtue of Law No. 5/2006, and the two Protocols thereto, the first Protocol being to Prevent, Suppress and Punish Trafficking in Persons,

Especially Women and Children, and the second being against the Smuggling of Migrants by Land, Sea and Air, and the Slavery Convention(52), and the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery(53), and joined the International Convention on the Suppression and Punishment of the Crime of Apartheid(54).

Therefore, the State of Kuwait is legally bound by these ratified Conventions to implement and enforce the rights contained therein for all individuals present on its territory. In the framework of the Universal Periodic Review (UPR), Kuwait submitted its second national report to the UPR Working Group on the Human Rights Council on 30 November 2014, which was considered at the 21st session on 28 January 2015. The report included several key elements, including domestic workers, regarding the mechanism of investigation and prosecution in cases of abuse of domestic workers and the confiscation of their passports(55).

In the Universal Periodic Review at the twenty-ninth session of the Human Rights Council, 278 recommendations were submitted to the State of Kuwait, of which approximately 27 were regarding migrant workers in general, including the domestic sector(56), and after reviewing the recommendations, Kuwait submitted responses, accepting 178 recommendations, rejecting 71, noting 25, and partially supporting 4 recommendations(57); of the accepted recommendations (continue strengthening the efforts to protect the safety, security and dignity of migrant workers, including women domestic workers, and to protect their interests by taking appropriate institutional and legislative measures)(58), (Adoption of specific labor law to protect the rights of domestic workers, including complaint mechanisms and penalties for the violators of the law) (59), and among the most important rejected recommendations (considering the ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and ILO Convention No. 189/2011 on Decent Work for Domestic Workers) (60).

Study Two

Compatibility between convention on Decent Work No. 189 and Law No. 68 of year 2015 regarding Domestic Workers in Kuwait. The results of the comparison between Law No. 68/2015 regarding Domestic Labour and Convention No. 189 concerning Decent Work for Domestic Workers will be briefly outlined.

Brief overview of the Convention

The Convention concerning decent work for domestic workers No. 189 of 2011, issued in Geneva at the 100th session of the ILO Conference, mindful of the commitment of the International Labour Organization to promote decent work for all through the achievement of the goals of the ILO Declaration on Fundamental Principles and Rights at Work and the ILO Declaration on Social Justice for a Fair Globalization, the Convention provides for a set of measures and procedures that must be applied by Member States that ratify the Convention to promote the decent work for all domestic workers.

To be continued tomorrow