CMNT_TITLE

Forced Labour Convention, 1930 (No. 29) - Kuwait (RATIFICATION: 1968)

Other comments on C029

Observation

Direct Request

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Articles 1(1) and 2(1) of the Convention. Protection of migrant workers against forced labour. 1. Migrant domestic workers. The Committee previously took note of Act No. 68/2015 on Employment of Domestic Workers, which establishes the specific obligations of employers with respect to recruitment, wages, hours of work, rest time and leave of domestic workers, as well as a complaints mechanism, and requested the Government to ensure its application. The Committee notes the Government’s indication in its report of the adoption of Ministerial Decision 22/2022 on the Executive Regulations of Act No. 68 of 2015, which further regulates the recruitment, working conditions, transfer of employment and repatriation of migrant domestic workers.

(a) Retention of passports. The Committee welcomes the enactment of section 23(7) of Ministerial Decision 22/2022, which prohibits employers from keeping in their possession any papers or personal identification documents belonging to the domestic worker, except with the worker´s consent. The Committee recalls that, in the past, it took note of cases of confiscation of passports of domestic workers by their employers. The Committee is of the view that given the intrinsic situation of vulnerability and dependence in which migrant domestic workers may find themselves, it cannot be excluded that domestic workers’ consent to give the employer custody of their identification documents could be obtained under pressure or threat. The Committee recalls that the retention of passports is an element which increases the risk of domestic workers not being able to leave their employment when they are victims of practices that could amount to forced labour. Therefore, the Committee requests the Government to ensure that the provisions of section 23(7) of Ministerial Decision 22/2022 are implemented in practice by guaranteeing that under no circumstances can employers retain identification documents without the domestic workers’ freely given consent, and that such workers are informed of and can readily access complaints mechanisms to report situations of illegal passport retention by the employer. To this extent, the Committee requests the Government to provide statistics on the number of complaints lodged by migrant domestic workers in this regard and the corresponding penalties imposed on employers.

(b) Transfer of employment and absconding workers. The Committee notes that section 38 of Ministerial Decision 22/2022 provides that, for reasons of public interest, the Public Authority for Manpower (PAM) can issue an order to transfer the domestic worker from an employer to another if: the employer dies; the domestic worker requests to be transferred to the employer’s husband or wife in the event of separation; the employer definitively leaves the country; the female domestic worker marries a husband in the country; the female domestic worker requests to be transferred to her husband’s residence; the employer fails to meet the eligibility conditions or a final judgment sentences him/her to prison; and an act, statement or gesture of sexual connotation is proven to be committed by the employer or those living with him/her against the domestic worker. The Committee further notes that the Government indicates that the transfer should be made with the approval of the competent authority within the Ministry of Interior, which shall certify that the worker agrees to the transfer. However, the Committee notes with concern that section 38 of Ministerial Decision 22/2022 provides for restrictive and limited grounds for the PAM to issue an order of transfer of employment without the employer’s consent. Hence, section 38 does not cover other situations of abusive working practices as grounds for a transfer of employment without the employers’ consent, such as non-payment of wages, non-respect of established working hours or rest periods, or situations of physical or psychological violence without sexual connotation. The Committee also observes that, pursuant to section 16 of Act No. 68/2015, the domestic worker may not be able to voluntarily terminate the contract before its end (through notice of its termination two months in advance).

The Committee further notes that in its 2021 concluding observations, the United Nations Committee on Economic, Social and Cultural Rights expressed its concern at the continued reports of exploitation and abuse of migrant domestic workers by employers, and referred to the continued existence of the crime of “absconding” (unjustified discontinuation of work), which makes migrant workers vulnerable to abuse and forced labour (E/C.12/KWT/CO/3 paragraphs 20 and 22). In this respect, the Committee notes that section 51 of Act 68/2015 provides that, in the event a domestic worker absconds from her/his service post, the Ministry of Interior will take action to deport the worker to her/his country. It further notes that, according to section 35 of Ministerial Decision 22/2022, an employer is prevented from filing an absconding report against a domestic worker after the latter files a complaint to the competent department, provided that the domestic worker is registered among the residents of the migrant workers’ accommodation centre. According to section 36 of this Ministerial Decision, the domestic worker’s residence permit can be extended until the complaint is resolved, and he or she receives all due entitlements. Furthermore, pursuant to Ministerial Decree 27/2021, the employer of a worker who is absent without an excuse shall inform the PAM after seven days have passed from the date of the worker’s absence. The notice submitted to the PAM must be displayed in a visible place at the workplace in order for the worker to be made aware of the notice, and the employer who submits the notice of the worker’s unexcused absence is prohibited from allowing the worker to resume their work until an investigation into the incident is concluded (sections 49 and 50). The Committee notes the Government’s indication that, in 2021, 994 complaints related to abandonment of work were under consideration by the courts.

The Committee observes that Act No 68/2015 does not foresee the termination of the employment relation by the domestic worker before the expiry of the initial employment contract (the maximum duration of the contract not being provided for in the Act) without approval of the employer. Furthermore, as indicated above, Ministerial Decision 22/2022 provides for the possibility of the domestic worker to transfer employment without the employer’s consent only in a few very specific cases. The Committee is of the view that these two circumstances increase the dependence of migrant domestic workers and their vulnerability to situations of abuse that could amount to forced labour. It recalls that the effect of statutory provisions preventing termination of employment of large duration by means of notice of reasonable length is to turn a contractual relationship based on the will of the parties into service by compulsion of law, and is thus incompatible with the Convention. Therefore, the Committee requests the Government to take the necessary measures to enable migrant domestic workers to transfer their employment at certain intervals and after having given reasonable notice during the duration of the contract. It also requests the Government to continue taking measures to ensure that, both in law and practice, migrant domestic workers can access the necessary mechanisms to defend themselves against complaints of absconding in situations when their rights have not been respected, and to indicate how many absconding cases have been brought by employers under section 51 of Act No. 68/2015 and how they have been decided. It also requests the Government to provide information on the number of domestic workers who have left their employment and been repatriated to their country of origin.

(c) Law enforcement. In response to the Committee’s request for information on the application of Act No. 68/2015, the Government indicates that, since 2019, the PAM is the entity responsible for domestic workers. The PAM has the responsibility to sensitize society with respect to the rights and obligations derived from the employment of a domestic worker, and to raise awareness among domestic workers about their rights using information brochures in multiple languages. It also undertakes periodic inspections of recruitment agencies and offices of domestic workers and follows up on complaints to ensure effective compliance with Act No. 68/2015. The Government adds that, since 2020, employers who want to hire a foreign domestic worker must use the standardized labour contracts that have been approved by the competent authority.

The Government emphasizes that the PAM seeks to resolve complaints in an amicable manner. If complaints cannot be resolved amicably, the PAM forwards them to the competent court. In cases of infringement or violation of the rights of domestic workers confirmed by the PAM, the employer will be prevented from obtaining entry visas for a period of six months. The complaint shall be later referred to the competent court for the imposition of further sanctions corresponding to the degree and type of the infringement. In 2021, a total of 1,487 complaints were filed by domestic workers against an employer (1,150 of which were resolved amicably) and three were filed against a recruitment office or agency.

The Committee requests the Government to continue taking the necessary measures to ensure that migrant domestic workers enjoy their rights provided for in the legislation, and to facilitate their access to mechanisms to defend themselves against situations of exploitation and abuse that could amount to forced labour, as well as reprisals. It also requests the Government to take the necessary measures to ensure that migrant domestic workers who are victims of forced labour receive the necessary psychological, social, medical and legal assistance. Lastly, it requests the Government to provide information on: (1) the type of sanctions imposed by the PAM (in addition to the suspension of granting of entry visas to the employers for six months) and national courts on employers and/or recruitment agencies who infringe the labour rights of migrant domestic workers; and (2) investigations and prosecutions undertaken in relation to situations of forced labour of migrant domestic workers.

2. Migrant workers in private enterprises. The Committee notes that, according to section 48 of Act No. 6/2010 concerning labour in the private sector, the worker shall have the right to terminate his or her work contract without notification if the employer does not abide by the terms of the contract or the provisions of the law; the worker was assaulted by either the employer or his deputy; continuing work would endanger his or her safety and health; the employer or his deputy committed an act of cheating or fraud with regard to work conditions; the employer has accused the worker of committing a punishable act and the final verdict acquitted the worker, or the employer or his deputy has committed an act that violates public morals against the worker.

The Committee further notes that, pursuant to section 1 of Administrative Decision No. 712/2017 on the transfer of employment for workers in small and medium-sized enterprises (SMEs), a transfer is permitted only within the SMEs sector, after three years of continuous employment and with the approval of the employer. It also notes that, pursuant to section 2 of Administrative Decision No. 842/2015, private sector workers who work on government-contracted projects are permitted to transfer only to another government-contracted project implemented by the same sponsor and only after the end of the contract. Transfer without permission of the employer is permitted only after three years from the issuance of the work permit. If the worker wishes to transfer prior to the end of this period without the consent of the original employer, he or she shall file a complaint with the PAM (Section 6 of Administrative Decision No. 842/2015).

The Committee requests the Government to indicate whether migrant workers in private enterprises who have the right to terminate employment under the circumstances established in Act No. 6/2010 can also transfer employment without the permission of the employer and without being asked to leave the country. It also requests the Government to provide information on the number of complaints before the Public Authority of Manpower submitted by migrant private sector workers working for government-contracted projects, who wish to transfer employment without the consent of the original employer and before the end of the labour contract, as well as the outcome of such complaints. It requests the Government to indicate whether this procedure of transfer also applies with respect to migrant workers in small and medium enterprises.

The Committee is raising other issues in a direct request addressed directly to the Government.