Aspects of Kuwait Private Sector Labour Law
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Aspects of Kuwait Private Sector Labour Law
ASPECTS OF THE KUWAIT transferability of employment as the
PRIVATE SECTOR LABOUR expatriate worker is required to
LAW obtain the consent of his employer
before moving to another
Introduction employment. Also the law does not
Kuwait has a robust private sector protect domestic workers, though the
which employs a large number of concerned Minister is required to
expatriates. Expatriates provide „issue a resolution concerning their
services in many areas of the affairs setting forth the rules that
economy ranging from the oil and organize their relations with
gas sector to the financial and employers‟ .
2
business sectors. The government on Some of the aspects of the law are
21 February 2010 enacted a new discussed in this article.
labour law, Law No. 6 of 2010 (The
Law of Labor in the Private Sector) to Contract of Employment
replace the now repealed Law No. 38
of 1964 which was widely regarded as The labour law requires all contracts
archaic and anachronistic. Several of employment to be in writing in the
concerns and objections had over the Arabic language3, though oral
years greeted the old law and it contracts are recognized where their
seems that the new law1 has tried to existence can be proved. It is also
address some of those concerns. Not mandatory for the contract to
only does the new law contain more provide for the execution date, the
provisions than the repealed law, it amount of remuneration, the term of
introduces new aspects not earlier the contract if it is for a specific
considered. The new labor law thus period4 and the nature of work to be
provides more modern and „worker- performed by the employee5. Where
friendly‟ labor laws. the period of contract is specified and
both parties continue to act thereon
Though Law No. 6 introduces new even upon expiry, the contract is
provisions and clarifies certain deemed automatically renewed in the
matters which were vague, many same terms and conditions as the
observers however believe that more previous contract.
fundamental changes should have
been made. One of such issues not During the validity of the contract,
addressed by the new law is the the employer shall not reduce the
sponsorship system which requires remuneration paid to the employee
every non-Kuwaiti worker to be
under the sponsorship of a Kuwaiti 2 Art. 5 of Law No. 6 of 2010
company before being eligible to 3 Art. 29
4 The term of the contract must not exceed 5 years.
work. This system hinders free 5 The employer is required to assign to the employee
only work consistent with the nature of the work
stated in his contract or suitable for his qualifications
1 The new law has a total of 150 Articles. and experience.
1and any agreement that allows such
reduction renders the contract null Probation
and void.
The new law clarified the issue of the
Women length of the probationary period to
be performed by an employee. Now
The law seeks to promote the rights an employee is expected to work for a
of working women6. Under the law, a period not exceeding 100 working
working woman is entitled to earn days. During this period both parties
the same pay with her male may terminate the contract without
counterpart if they perform the same notice and where such termination is
work7. Women are also not to be made by the employer, he shall pay
employed for night work save in the worker for the period worked. It
certain instances, are not to take up is unlawful for the worker to perform
work deemed hazardous or harmful probation more than once.
to their health neither are they
allowed to work in an environment
likely to exploit their femininity. Disciplinary Actions
A pregnant worker is entitled to 70 The law requires every employer to
days paid maternity leave which she notify an employee of any
must take within the period of disciplinary action pending against
childbirth. Taking up her maternity him. Before any penalty is imposed
leave does not deprive her of the on the employee, the employer must
right to take up any other leave which notify him in writing of the alleged
she is entitled to under the law like wrongdoing and the employee must
her annual leave8. Any other leave be given a fair hearing. Where he is
she takes for the purpose of nursing found guilty of wrongdoing, he shall
her baby which shall not exceed 4 be notified in writing of the penalties
months shall be unpaid. It shall be imposed on him and if deductions
unlawful for an employer to are to be made to his remuneration,
terminate the employment of a such deductions shall not exceed
pregnant worker while she is on any 5days pay for each month until the
of these legally recognized leaves or penalty is fully paid9.
where she is away on a leave of Where a worker is suspended from
absence due to a pregnancy induced work during the period of an
sickness. investigation into an alleged
Upon resumption of duty after the wrongdoing, he shall not be on
maternity leave period, a nursing suspension for more than 10 days
worker is entitled to two hours break and if he is not found guilty at the
each day to enable her go and nurse end of the investigation, he shall be
her baby.
6 See section 4 of chapter 1.
7 Art. 26
8 Art. 24 9 Art. 38
2entitled to his remuneration for the compensation for moral and material
period he was away on suspension10. damages11. Nothing in the law
compels the employer who has acted
arbitrarily in dismissing an employee
Termination of Employment to reinstate such an employee. For
Subject to the provision of Art 37 of fixed term employment, a party who
the law (that is notification of terminates the contract arbitrarily
pending disciplinary action against shall compensate the other and this
employee) an employer may compensation should not exceed the
terminate a contract of employment remuneration of the worker for the
without notice, compensation or remaining period of the contract12.
benefit if a worker: A worker who absents himself from
(1) commits a mistake that results work for 7 consecutive days or 20
in huge loss for his employer; separate days in a year without a
or valid reason would be deemed to
(2) has obtained his employment have resigned his appointment. Also
by cheating or fraud (for if an employee is imprisoned based
example if he tendered forged on an accusation made by his
certificates); or employer, his employment is deemed
(3) divulges secrets of the suspended until a final verdict is
company causing or likely to obtained in the matter. If the
cause the company losses. employee is acquitted then he shall
be paid remuneration for the period
An employee may also be dismissed of suspension including a fair
by his employer if he is guilty of compensation to be determined by
committing a crime that relates to the court.
honor, trust or morals (e.g if he
steals); commits acts against public In any other case, parties to an
morals at the work place; if he indefinite contract may bring their
assaults his colleagues or superiors; contract to an end by either giving
fails to abide by any rules imposed by notice to the other or the payment of
his contract or the law; or repeatedly salary in lieu of notice. The law
violates his employer‟s instructions. specifies a 3 months‟ notice period
Though dismissed, he shall still be for a monthly wage earner and one
entitled to his end of service benefits. month notice for other employees13.
In all cases of dismissal, the The law specifies instances in which
employee shall still have a right to the employee can terminate his
appeal the decision to dismiss him employment without the need to
before the competent labor comply with the requirement to give
department and where it is
established that his dismissal was 11Art. 41
arbitrary, he shall be entitled to his 12 Art. 47
13 Art. 44. Cf with Art. 53 of Law No. 38 which had
end of service benefits plus provided a 15days notice period for monthly wage
earners and 7 days notice for other types of
10 Art. 39 employees.
3notice and shall still be entitled to his The law makes provision for the
end of service benefits14. Such payment of full terminal benefits to
instances include: an employee16 where:
(a) if the employer does not abide by (a) the employer terminates the
the terms of the contract or the contract;
provisions of the law; or
(b) the duration of the contract
(b) if the worker was assaulted or has expired without being
provoked by either his employer or renewed;
deputy; or
(c) if continuing work will endanger (c) the contract was terminated
his safety and health pursuant to the because the employee
decision of the medical arbitration exercised his right to terminate
committee at the Ministry of Health; as provided in Art. 48 or upon
or the death or permanent
incapacitation of the employee
(d) if the employer or his deputy or if the company is declared
committed an act of cheating or fraud bankrupt or the company
with regard to work conditions upon closes down;
signing the contract; or
(e) if the employer has accused the (d) a female resigns her
worker of committing a punishable appointment within one year
act and the final verdict acquitted of getting married.
him; or
The law allows a worker who is
(f) if the employer or his deputy engaged under an indefinite contract
commits an act that violates public to terminate his contract of
morals against the employee. employment receive some or all his
terminal benefits depending on the
A contract will also be terminated number of years so long as he has
upon the death of the employee, worked at least 3 years for his
bankruptcy of the employer or if the employer17. A monthly paid worker is
establishment is permanently entitled to half of his salary for each
closed15. In the case of the merger or of the first five years worked, two-
acquisition of the company, the thirds of his salary if he has worked
employee who is retained is entitled between five to ten years and then his
to work upon at least the same terms full salary if he has worked over ten
and conditions of his previous years. The terminal benefits payable
employment. to such an employee shall however
Terminal Benefits
14 Art. 48. 16 Art. 52
15 Arts. 49 & 50 17 Art. 53 of Law No. 6
4not exceed his remuneration for one holidays and sick leaves should not to
and half years18. be deducted from the annual leave.
The employee is entitled to receive an An employee is also entitled to
end of service certificate from his certain other paid leaves such as
former employer detailing the bereavement leave, Hajj leave and
duration of his employment, his academic leave subject however to
position and his last salary. The some conditions.
employer is refrained under the law
from including any statement that Health, Safety &Environment
may harm the employee or limit his
employment prospects. The employer is required to take all
safety measures aimed at protecting
Work Hours, Overtime and workers against work risks. He is also
Leave required to take out medical
insurance for all his workers (save
The law provides that an employee is those already protected under the
entitled to work 48 hours a week or 8 social security law) covering them
hours a day. During the period of from work injuries and occupational
Ramadan work hours are reduced to diseases20.
36 hours. He is also entitled to a day
off each week. A worker that suffers a work related
injury or occupational disease shall
An employee should not work more be entitled to his full remuneration
than two (2) hours overtime per day throughout the period of treatment
and must be compensated for such specified by the attending physician.
overtime work19. Where an employee If the treatment exceeds 6months,
is required to work on official public the employee shall be entitled to half
holidays, he should also be of his salary until he fully recovers or
compensated. until he is proven to be disabled or
dead21. In the event that he is proven
Each employee is entitled to a thirty disabled or dead, he or his relatives
(30) days paid leave and he can only shall be entitled to compensation 22.
accumulate his leave for 2 years. For
no reason must an employee forfeit
his leave whether with compensation Penalties Imposed on
or not. An employee is also entitled Employers
to take sick leave for which he would
be compensated as stated in the law. The new law penalizes employers for
He must however obtain a medical failure to comply with certain
report from a government medical provisions of the law. For example an
facility to prove that he was sick. The employer who brings in workers from
law provides that official public
20 Art. 88
21 Art. 93
22 Art. 94. See Art. 95 for instances where an employee
18 Art. 51(b) will not be entitled to any compensation for injury or
19 Art. 66 disease suffered in the course of employment
5abroad and does not eventually Claims filed by workers shall have a
employ them is liable to pay an lien over an employer‟s moveable and
amount not exceeding KD500 to the immoveable assets except his private
Authority. Also an employer who fails residence24.
to notify the competent authority
annually of the details and numbers Conclusion
of workers working for him shall be
liable to pay an amount not The 2010 labor law in the private
exceeding KD500 or more if such a sector is a huge improvement from
higher sum is stipulated in any other what existed under the Law No. 38 of
part of the law. 1964. Though the law has its critics,
foreign workers appear to be entitled
Failure of an employer to put up a to improved conditions of service
work a chart of penalties for while erring employers are likely to
infractions committed by workers in face stiffer sanctions for breach of the
a conspicuous place at would attract provisions of the law.
a term of imprisonment of not more
than three years and a fine of not less Government has expressed its
than KD1,000 or more than intention to abolish the widely
KD5,000. Failure of an employer to criticized “Kafeel” or sponsorship
pay workers‟ remunerations and system and in its place establish a
benefits into their bank accounts and new Public Authority for Manpower
sending the bank statements issued to handle issues relating to
by those banks to the Ministry of employment and welfare of
Social Affairs and Labour would also expatriate workers. It is expected that
attract a penalty. such a move would reduce drastically
cases of visa trading and forced
Limitation of Time slavery. It is expected that the
sponsorship system would be
The law prescribes a timeframe abolished in February 201125.
within which an action under the law
can be commenced before it becomes
statute barred. Thus aggrieved
employees can only file a lawsuit
within one year of the end of the
work contract23.
Lawsuits filed by workers or
beneficiaries shall be exempted from
judicial fees but where such lawsuits
are dismissed by the court, the court
may order the party who has filed the
case to pay all or part of the court
fees.
24Art. 145. See also Art. 1074 of the Civil Code
25 See “Kuwait to Scrap Sponsor System” in Arab
Times Newspapers of 26 September 2010. See
www.arabtimesonline.com; See also “Kuwait to Scrap
23 Art. 144 „Kafeel‟ System on http://www.kuwaittimes.net
6Kuwait – Hawalli – Plaza Complex – 3rd Ring road – Al Othman Street – 3rd Floor – Suites 11 & 12 – P. O. Box 16107 Al
Qadesiya – Tel: +965 226 50630 / +965 226 50640 – Fax: +965 226 50610 – Website: www.aloulalaw.com
© 2010 Al Oula Law – Adel Abdul Hadi & Partners – All rights ReservedYou can also read
