Deficiencies seen in implementation and effectiveness of Law 68/2015

Lack of harmony between recruitment offices and Department of Domestic Labour

This is the fourth part of the report on Rights of Domestic Workers Between Legislative System and Enforcement through Law No. 68 of Year 2015

— Editor

• Practical trainings for approaching laws.

• Media awareness and courses.

3. Do you believe that law No. 68 of 2015 is effective and influential?

Form number (53) shows that only (4%) of workers believe that the level of effectiveness is (good), while (16%) think that law is effective and influential in some way. These responses indicate the presence of deficiencies in the law, its implementation and effectiveness.

4. Are there any deficiencies in law no 68 of 2015?

Form number (54) shows that more than half of the employers who responded, with a percentage of (56%), reported that there are deficiencies in law no. (68/2015), and only (20%) of them believe that there aren’t any deficiencies in the same law. these results require the organizations to activate their roles in conducting studies and surveys to activate the role of the law and improve the deficiencies therein on the basis of their work within the civil society.

When asked about suggestions they can offer to activate the law and its enforcement and to address the deficiencies therein, the employees of civil society organizations agreed on the following:

• Conducting public awareness programs and intensive media recruitment.

• Engaging civil society in law enforcement evaluation and monitoring.

• Incorporating dissuasive penalties into the law and publish them for the public through media.

• Finding more effective mechanisms.

• Identifying some paragraphs of the law, such as rest hours and working hours, and handling violations firmly.

• Reformulate or abolsih the sponsorship ‘ kafala ‘ system , and establishing a special authority to deal with migrant workers in general, including domestic workers, follow up on them during work, and evaluate them.

C.Key findings regarding the knowledge of the (Employees of the Civil Society Organizations) of the Law No. (68/2015:

The responses of the employees working in civil society organizations (25 persons) reveal the following results:

1. The presence of deficiencies and weakness in the level of knowledge, implementation and effectiveness in general, among employees of civil society organizations and within the society in general, as those who are entrusted with spreading awareness and evaluating the effectiveness of law need practical training on how to deal with the law. This may be a reason for the lack of enforcement, in addition to the absence of knowledge.

2. The lack of specialized civil societies activities existence which provide their assistance to the domestic workers, such as legal aid and presentation in courts , consultations and guidenss regarding laws regulating their work contracts, their rights and obligations , raising public awareness regarding the laws regulating house workers contracts.

3. The humanitarian and social role of civil society organizations should involve the protection of aggrieved persons, in the human dimension, and eliminating injustice (if any), as well as coordinating with governmental authorities to enforce, activate, and evaluate the law, and establishing dissuasive penalties that guarantee the integrity of law among society members.

(Study Fourth)

Owners of Recruitment Offices

A.Description of the sample’s characteristics.

The questionnaire was distributed to (23) persons owning domestic workers’ recruitment offices in Kuwait, related to the subject of the study (the survey), where number of offices participated in the study, such as: Hessa Almutairi Office, As Safir Office, Al Intissar Office, Modi Al-Deehani Office, Al-Durra for Manpower Company, and other offices. These offices recruited number of domestic workers, the lowest being (40) and the highest (1,000), with (4 – 15) employees working in these offices.

B.The responses of the recruitment offices’ owners to the questionnaire are listed below:

1.Are you aware of the existence of law No. 68 of 2015 regarding

Domestic Labour in Kuwait?

Form number (55) shows that a high percentage of recruitment offices’ owners who were questioned, are aware and have knowledge of law No. (68/2015), where (78.2%) answered with “yes”, while one of them believes that they are not familiar with the law. This could be due to the need of the offices to directly deal with the law, in addition to their direct interaction with governmental authorities for licensing and follow-up, in addition to the ongoing inspections carried out by the governmental authorities, such as the office of the Department of Domestic Labour.

2. Does the Department of Domestic Labour in the Ministry of Interior implement the articles of the law in a proper way?

Form number (56) shows that only (17.3%) of recruitment offices believe that the Department of Domestic Labour in the Ministry of Interior applies the law in a proper way, while (39.13%) of them think that the law is sometimes properly applied by the Ministry of Interior through the Department of Domestic Labour. However, (43.47%) stated that the Department of Domestic worker does not enforce the law properly, which reflects the lack of harmony between the offices’ owners and the Department of Domestic Labour in the Ministry of Interior.

3. Did the law establish a good relation between recruitment offices, employers, the Department of Domestic Labour and the domestic workers?

The responses of the owners of recruitment offices, as shown in form number (57), reflect the negative relation between them and the Department of Domestic Labour in the Ministry of Interior, where (86.9%) of them believed that the law failed to establish a positive relation between the recruitment offices and the Department of Domestic Labour, whereas only (2) of the owners agreed that the law created a positive environment between them. The majority of those who answered the questionnaire agreed that the law did not facilitate the process of domestic workers recruitment, with (22) out of (23) confirming this fact. When asked about the reasons, the answers were as follows:

• Recruitment process has become more complicated.

• The conditions are much harder to follow under the law (68), and the Department of Domestic Labour is undertaking unfair procedures against offices.

• Most of the complaints filed by the offices reached a dead-end repeatedly which lead to unemployment.

• Reluctance of the ministry of interior to operate with Kuwait, especially after the increase of the sponsorship period from 100 days to 6 months.

• The law was too vague. The license requester should be holding a high school diploma in order to obtain the license. This law is just a reproduction of the old law with some additions thereto.

• Addition of the article stipulating that the recruitment office shall not be allowed host the domestic worker if the sponsor wishes to end the employment. The sponsor will be obliged then to refer to sites to transfer the domestic worker, in a humiliating way, depriving the domestic worker and the employer from their rights. While the old law allowed the sponsor to send back the domestic worker to the office.

• Forbidding offices to hire workers from inside Kuwait.

4. Are the conditions concerning the issuance of licenses and their renewal to pursue the business of recruiting domestic workers, in accordance with the law, appropriate?

Form number (58) shows that (4.36%) reported that the conditions concerning the issuance of licenses and their renewal to pursue the business of recruiting domestic workers, in accordance with the law, are appropriate, while (17.39%) of recruitment offices’ owners stated that these conditions are sometimes appropriate, not always. However, (78.25%) of recruitment offices’ owners said that the conditions concerning the issuance of licenses and their renewal to pursue the business of recruiting domestic workers, in accordance with the law, are unfair and inappropriate for several reasons listed below:

• The requirement of medical examination and criminal record even though they can be accessed on the computer system.it is a free trade non-governmental business.

• The Ministry’s intervention in the rejection for private reasons, which restricts the freedom of work.

• The complicated procedures including the comprehensive examination and annual fingerprinting checks of the license holders, are inappropriate for what Kuwait aspires.

• Raising the ceiling of the required amounts, such as the requirement to pay premiums of 40 thousand dinars, and 100 thousand dinars for companies.

• The time period to renew the license is time-consuming and necessitates almost two weeks.

5. Is the Department of Domestic Labour deducting amounts for recruitment offices from the financial guarantee provided for, outside the law?

Form number (59) shows that almost half of the recruitment offices’ owners who answered the questionnaire, reported that the Department of Domestic Labour is breaching the law by deducting amounts from the amount of the financial guarantee, outside the law, while (17.39%) of them stated that it sometimes does. Which confirms the lack of trust between the offices’ owners and the Department, as the level of understanding between the two parties is almost weak and needs

to be reviewed and evaluated.

6. Do some recruitment offices perform actions that violate the

provisions of Law No. 68 of 2015 regarding Domestic Labour?

Form number (60) shows that several recruitment offices tend to violate the law no. (68/2015) for many reasons as reported by (43.47%) of them, while only (17.39%) of them refused to practice such violations. This requires law revision and involving the recruitment offices as partners in evaluating the effectiveness of law since they are among the main actors in the process of managing domestic labour. Those who violate the law listed many reasons for doing so, such as:

• Deficiencies in legislation and law causing the office to incur huge losses leading to its closure.

• Having to deal with absconding domestic workers as a solution that satisfies all parties.

• To compensate their losses when the Department of domestic Labour temporarily closes their offices.

7. Have you ever faced a problem in recruitment with the employer, the domestic worker or the Department of Domestic Labour?

Form number (61) shows that the majority of recruitment offices’ owners have faced problems with the Department of Domestic Labour offices, the employers and the domestic workers themselves. (91.3%) of them have faced problems with one of these parties, which theoretically proves that the law in its current version, needs a new approach for discussion and evaluation, as the law is intended to mitigate problems arising between the concerned parties. Among these problems, mention may be made of the following:

• Abuse of the domestic worker by the sponsor.

• Non-commitment of the sponsor to pay the salary.

• Problems with domestic workers when they are medically unfit.

• Delay of domestic workers’ arrival from their country, while the validity of the visa is for three months only.

• Failure of the sponsor to pay the due amount for recruitment.

• Delay in licenses renewal that leads to confusion within the embassy and cause disruption of contracts.

• Failure of the Department of Domestic Labour to comply with the provisions of the contracts, except for the benefit of the employer.

• Some domestic workers cannot bear the hard work of some households, whereas the sponsor forces them to. And in the event that they objected, the sponsor will take them to the Department of Domestic Labour and they will be deported and oppressed.

• The Department of Domestic Labour often takes actions in favor of the sponsor against the recruitment offices.

• The sponsor’s delay in accomplishing the residence procedures of the domestic worker putting them in an illegal situation.

8. Do you think that law No. 68 of 2015 regarding Domestic Labour is more just to the recruitment offices than the previous law, or not?

Form number (62) shows that (8.69%) of recruitment offices’ owners believe that law No. (68/2015) addressed some deficiencies of the previous law, in terms of the relation between the recruitment offices, the domestic workers, and other concerned parties. Whereas, (86.95%) of recruitment offices stated that the law did not treat them fairly and did not address the gaps of the previous law, which requires the need to listen to the suggestions of recruitment offices since they are suffering more than benefiting from this law, thus the law is not achieving its objectives. People who reported that the law with unjust to them stated many reasons among which: the law imposes obligations on the recruitment offices and does not give them rights, depriving them from the privilege to re-employ the domestic worker, and prohibited them from taking back the domestic worker since the Department of Domestic Labour threatens with suspension of the business license.

9.Does the Department of Domestic Labour work on resolving disputes that arise between the recruitment offices and the other related parties, in accordance with the law?

Form number (63) shows that (47%) of offices’ owners agreed on the fact that the Department of Domestic Labour does not resolve disputes or problems arising between the recruitment offices and other related parties, in accordance with the law, while (17.3%) reported that the Department is performing its duty in resolving the disputes.

The reason behind this, as stated by most of the offices’ owners, is that the Department of Domestic Labour applies the law to the offices, and disregards the sponsor and the domestic workers’ rights, asking the parties to refer to court, which consumes lots of time to settle the case. At the same time it does not file the citizen’s complaint to the court and hold the offices in charge of the costs, without giving the offices the chance to defend themselves and receive their rights.

10. Are you satisfied with the law No. 68 of 2015 regarding Domestic Labour? And why?

Form number (64) summarizes the opinion of recruitment offices’ owners, where the majority of them (95.7%) reported that they are not satisfied with law no. (68/2015), which evokes the need to study the reasons to bring support and satisfaction to all concerned parties. Their dissatisfaction was due to several reasons among which:

• Failure to take the opinions of owners and license holders into consideration while enacting laws that serve everyone.

• The law excluded the re-employment and limited the offices powers to recruitment only.

• It undermines the right of domestic workers to freedom of choice, causing problems between the office and the foreign office.

• It prevented the reception of domestic workers during the sponsorship, in addition to the right to employ them elsewhere, and this is unfair for the office, the domestic worker and the sponsor, which could lead to human trafficking.

• Failure of law enforcement authorities to comply with the law, and disregarding the rights of recruitment offices.

• Failure of the law to regulate the recruitment process as required, in a way that keeps up with current progresses, especially in terms of rights and duties of the sponsor and the domestic worker.

• Even though offices are not entitled, in accordance with the law, to recruit domestic workers from inside kuwait, which means transfer from one sponsor to another, sponsors are doing this through sites to offer the transfer of the domestic worker from one employer to another.

C.Key findings regarding the (recruitment offices’ owners) knowledge of the Law No. (68/2015):

The responses of the recruitment offices’ owners (23 persons) shows a state of dissatisfaction regarding the law, despite their knowledge of the law and the provisions thereof. Nevertheless, form their point of view, the law fails to achieve justice for employers. The offices’ owners believed that law No. (68/2015) is unfair and unfavorable to them for many reasons and pointed out many components that can be summarized as follows:

Lack of harmony between the recruitment offices and the Department of Domestic Labour in the Ministry of Interior, where (43.47%) of offices’ owners reported that the Department of Domestic Labour does not enforce the law properly. Add to this their desire to outsmart the law through some violations such as dealing with absconding labourers as they are not convinced of the law’s usefulness.

(86.95%) of offices’ owners believed that the law failed to achieve a positive relation between recruitment offices and the department of Domestic Labour, since the provisions of law (68/2015) and the Department of Domestic Labour are constantly in favor of the employers. (78.25%) of the recruitment offices’ owners believed that the conditions for issuing and renewing the license to pursue the business of recruiting domestic workers, as stipulated by the law, are unfair, complicated and time-consuming.

(47%) of the recruitment offices’ owners lack trust in the effectiveness of the office of the Department of Domestic Labour to resolve disputes arising between them and other parties involved, as the office of the Department of Domestic Labour lacks human and material capacities to settle the issues of domestic labor and address them fairly.

(86.95%) of the recruitment offices reported that the law was unjust to them and did not address the gaps in the previous law.

It is noted that despite the existence of law provisions that prohibit dealing with absconding labourers, or recruiting from inside Kuwait, some of the recruitment offices are still performing these acts since they do not believe in the usefulness of the law on one hand, and the law does not meet their benefits on the other hand. Therefore, the relation between the controller (the office of the Department of Domestic Labour) and the recruitment offices is based on employer-employee policy. The recruitment offices that resemble the employee in this relation, are always at risk of closing their businesses, and this is exactly how they feel, according to their point of view.

The consistency of the responses of recruitment offices’ owners reveals an obvious agreement with regards to their attitudes towards the law due to the improper enforcement of the law from one side, and its infectiveness from the other side.

Abstract

The post-analysis study reveals many contradictions in the responses provided by the three main parties interrelated with law No. (68/2015) regarding Domestic Labour, which confirms the need for coordination between the three parties (employers, domestic workers and recruitment offices), in addition to the Department of Domestic Labour whose views regarding the effectiveness of law were not taken into account, since they are entrusted with law enforcement, and ensuring compliance of the three parties with the law. Particular attention should be given to the fact that domestic workers and their employers are not well-informed of the applicable labour laws, and lack the ability to deal with the provisions and procedures stipulated by these laws, since the knowledge of employers of the law and their commitment to implement it is considered to be one of the main indicators of the law’s effectiveness. Listed below are the most crucial points that can be noted in the relation between the surveyed parties regarding their views on law (68/2015), and their knowledge of law no. (68/2015):

1. The study showed that the law did not reach the required level of dissemination among related sectors, as the level of knowledge of employers, domestic workers, recruitment offices’ workers, and employees of civil society organizations is weak and almost superficial. This can be attributed to the low level of education among the majority of domestic workers, the employers’ indifference to the law, and the exploitation of the ignorance of domestic workers of the law and their fear of losing their jobs sometimes.

2. (62.2%) of employers are not aware of the enactment of law No. (68/2015) regarding Domestic Labour, however it was enforced more than three years ago. Which causes many implications, among which:

• Failure of law No. (68/2015) regarding Domestic Labour to be effective at the required level since the knowledge of employers of the law and their commitment to implement it is considered to be one of the main indicators of the law’s effectiveness and usefulness.

• Failure to comply with the law No. (68/2015) regarding Domestic Labour, in the absence of awareness, guidance and dissemination of the law. Taking these measures is important to ensure the compliance with the law and the respect of rules and provisions stipulated by law. Therefore, law enforcement authorities should conduct guidance and awareness regarding the law and the obligations and duties therein.

3. (71.59%) of domestic workers are not aware of the enactment of law No. (68/2015) regarding Domestic Labour, however it was enforced more than three years ago.

4. The Majority of the surveyed people agreed that is essential to have a law that regulates the relation between the related parties. However, some parties still believe that the law is unfair to them, such as the domestic workers and the recruitment offices’ owners who view law negatively, in a way that does not meet their expectations and in favor of the employers only.

5. It is observed that customs prevailed over law, where employers are treating domestic workers as they are used to, since most of them are not even aware of the existence of the law.

6. Contradictions between the responses of employers and those of domestic workers are so obvious. Domestic workers respect the instructions given by employers, and perform their duties properly as stated by (84.97%) of employers. However, employers continue to treat domestic workers in a humiliating way sometimes, and assign them hard work and hazardous activities other times.

7. Despite the fact that employers are asking for a law that regulates the relation between domestic workers and recruitment offices, they continue to violate the law by confiscating the travel documents, where (91.9%) of employers retain the travel documents of domestic workers, deprive them from their additional wage, their annual leave, and weekly rest day, and forbid them as well to leave the house during their leave, along with many other violations that could not be identified because domestic workers are afraid to file complaints on one hand, or feel that it is useless on the other hand; especially that large number of them resort to their embassies even though the law facilitated the process of filing complaints through the Department of Domestic Labour.

8. (56%) of employers did not conclude an employment contract with the domestic workers working for them. The majority of employers reported that they have signed an employment contract with the recruitment offices, while others stated that the contract is written in a language that the domestic workers are unable to understand, even though the law stipulated that domestic workers shall not be employed by employers but under employment contracts (bilateral or tripartite, as the case may be) issued by the Department of Domestic Labour in the Ministry of Interior, written in both English and Arabic languages. This confirms the lack of legal effective protection for domestic workers, at the required level, since law No. 68/2015 does not include procedures that require employers to conclude written employment contracts.

9. The majority of domestic workers, equivalent to (77.64%), work for more than ten hours a day, as evidenced by the responses of domestic workers and employers. The law stipulated that the length of work hours shall not exceed 12 hours in a one-day-period, interspersed with break hours. The implementing decisions of the law confirmed the need to rest for one hour after every five working hours, which means that effective working hours shall not exceed ten hours daily.

10. Incompatibility between the recruitment offices and the Department of Domestic Labour in the Ministry of Interior, where (86.95%) of offices’ owners believed that the law failed to established a positive relation between the recruitment offices and the Department of Domestic Labour that takes the side of the employer most of the times, according their opinions, which forces them to outsmart the law through some violations such as dealing with absconding labourers for example, because they are not convinced of the law’s usefulness.

11. (78.25%) of the recruitment offices’ owners believed that the conditions for issuing and renewing the license to pursue the business of recruiting domestic workers, as stipulated by the law, are unfair and complicated, especially with regards to the bank guarantee required to be deposited (40 thousand KWD for offices, and 100 thousand KWD for companies), in addition to the routine governmental actions that require lots of time to accomplish the issuance and renewal formalities.

12. (86.95%) of the recruitment offices believed that the law was unjust to them and did not address the gaps in the previous law.

13. (47%) of the recruitment offices’ owners did not trust in the ability of the Department of Domestic Labour to resolve disputes arising between them and other parties involved, and believed that it failed to provide domestic workers with legal assistance and help in translation, whereas the investigators of the Department conduct their investigations in Arabic only. Based on the nationality of domestic workers, the majority of those who file complaints do not speak Arabic well, and do not provide a detailed description of the complaint.

14. The statistics of civil society organizations show that large number of domestic workers whose rights were violated, are unable to express it because they are afraid of their employers or of losing their jobs. Domestic workers often hesitate to file complaints to the Department of Domestic Labour, especially when the complaints are related to working conditions or abuse because they fear the employer’s revenge. Some employers accuse the domestic workers working for them with robbery by submitting a complaint to the Police, which institutes criminal proceedings against the domestic worker. The employer will use this as a bargaining chip, where they agree to drop the charges in return for a lesser settlement.

15. The lack of specialized civil societies activities existence which provide their assistance to the domestic workers , such as legal aid and presentation in courts , consultations and guidenss regarding laws regulating their work contracts , their rights and obligations, raising public awareness regarding the laws regulating house workers contracts.

16. The law fails to modify the way employers behave with domestic workers working for them. The law stipulated that domestic workers shall keep in their possession their travel documents, shall be entitled to a weekly rest, an annual leave, and additional pay for extra work. However, domestic workers do not get these rights most of the times, as evidenced by the responses of the employers and the domestic workers. This may be due to the absence of dissuasive penalties and inspections mechanisms through field visits to homes or meeting with the employer and the domestic worker at any predetermined location.

17. Disparity in negotiation power when settling a dispute between parties, under the supervision of the Department of Domestic Labour investigators, where most of the domestic workers stated that they refer to their embassies in case of a dispute between them and their employer. That is because they believe the restitution of their rights won’t be achieved and their complaints won’t be addressed fairly or seriously, as the domestic worker would be put under pressure to accept any settlement with the employer, such as not getting his full rights due to power imbalance.

18. The problem of domestic workers leaving their sponsors’ houses reflects the incompatibility between the two parties, and thus the bad relation between them. This is why sponsors retain the travel document of domestic workers because they are afraid that workers would leave the house ‘work place’ would leave the house. This relation based on the lack of confidence is built since the beginning of work, and has a negative effect.

Recommendations

In light of the subjects covered in this study, and the survey of the opinions of the parties concerned with law No. (68/2015), from employers (sponsors) to domestic workers, in addition to the recruitment offices’ owners and number of civil society organizations, the following recommendations can be drawn up:

To be continued tomorrow