Demande directe (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

The Committee takes note of the Government’s reports, and requests the Government to supply further information on the following points.

Article 1 of the Convention. The Government indicates, in its report, that a Committee was set by virtue of Ministerial Decree No. 184 of 1999 to consider ILO standards and Conventions. The Committee requests the Government to provide information on the role and functions of this Committee and to supply a copy of the Ministerial Decree.

Article 2, paragraph 1.  Scope of application. 1. Domestic servants and seasonal workers. The Committee had noted that section 2(d) and (e) of the Act No. 38 of 1964, excludes from its scope workers employed for temporary work of no more than six months’ duration, as well as domestic workers and other workers in a similar situation. In addition, the Committee had noted that a draft Labour Law, amending Act No. 38 of 1964 on Labour in the Private Sector, was being discussed by the national authorities. The Committee had also noted that the new Labour Law should apply to private sector, government and oil-sector workers. The Committee takes note of the Government’s indication that section 2(d) and (e) of the Act No. 38 of 1964 will be amended so as to read, "provisions of this Law shall exclude from its scope domestic workers and other workers to whom other laws apply, as specified in such laws". The Committee recalls that, by virtue of Article 2, paragraph 1, the Convention applies to all sectors of activities and kinds of employment as Kuwait had not availed itself at the time of ratification of any of the flexibility clauses contained in Articles 4 and 5 of the Convention. The Committee hopes that the Government will soon adopt the amendments to section 2(d) and (e) of Act No. 38 of 1964, and all necessary measures so as to ensure that seasonal employees as well as domestic servants and the like, benefit from the protection laid down in the Convention.

2. Self-employment. The Committee notes that section 1(1) of Law No. 38 of 1964 defines a labourer as every male or female worker and employee, performing any manual or mental work, in consideration of a wage, under the supervision of an employer. The Committee notes that the Government once again states, in its report, that the phenomenon of child labour does not exist and that the State is required by the Constitution to protect the rights and welfare of young people. However in its previous comments, the Committee had noted that the Committee on the Rights of the Child, in 1998, expressed its concern at the recent increase in the number of children living and/or working on the street. Recalling that Convention No. 138 requires the fixing of a minimum age for all types of work or employment and not only for work under an employment contract, the Committee asks the Government to supply information on the measures taken or envisaged to ensure the application of the Convention to all types of work outside an employment relationship, such as self-employment. The Committee also requests the Government to provide information on the situation of street children, in particular with regard to their age, number and the types of work they undertake.

3. Employment of non-Kuwaiti children. The Committee had noted that the Committee on the Rights of the Child, in 1998, expressed its concern at the situation of non-Kuwaiti children in the country, and recommended that the State take suitable measures to protect the rights of stateless Bedouin and migrant children who do not have Kuwaiti citizenship. The Committee notes the Government’s statement, in its report, that it will take into account the recommendations of the Committee on the adoption of suitable measures to protect the rights of stateless Bedouin and migrant workers who do not have Kuwaiti citizenship. The Government also indicates, in its report, that it will implement the provisions of the Convention in its territory and in any means of transport registered in its territory, with regard to the minimum age for admission to employment or work of any person. The Committee asks the Government to rapidly take concrete measures to ensure that non-Kuwaiti children living in its territory benefit from the protection laid down in the Convention.

 Article 2, paragraph 1. Minimum age for admission to employment or work. The Committee had noted that under the terms of section 18 of Act No. 38 of 1964, the minimum age for admission to employment or work is 14 years, although the minimum age indicated by the Government in the declaration attached to its ratification statement is 15 years. The Committee accordingly reminds the Government that by virtue of Article 2, paragraph 3, of the Convention, the minimum age for admission to employment or work shall conform to the minimum age specified at the time of ratification. The Committee urges the Government to take the necessary measures to fix 15 years as the minimum age for admission to employment in conformity with the minimum age specified at the time of ratification.

 Article 2, paragraph 3. Compulsory education. The Committee notes that article 40 of the Constitution provides for free and compulsory education at the primary stage for all Kuwaitis. The Committee also notes that according to the information given by the Government to the Committee on the Rights of the Child, in 1998, Legislative Decree No. 4 of 1987 concerning public education provides for compulsory education for Kuwaitis aged 6 to 14 years. It observes that section 2 of Law No. 11 of 1965 on compulsory education establishes that compulsory schooling starts at 6 years of age and shall last until the age specified in an administrative regulation. The Committee asks the Government to provide a copy of the administrative regulation that fixes the age of completion of compulsory schooling pursuant to section 2 of Law No. 11 of 1965 on compulsory education. It also requests the Government to indicate, in its next report, the exact age of completion of compulsory schooling.

Article 3, paragraph 2. 1. Determination of hazardous work. The Committee had noted the provisions of section 19 of Act No. 38 of 1964, which allow work by persons aged between 14 and 18 years under certain specific conditions, including the condition that they are employed only in enterprises and businesses where conditions are not hazardous or unhealthy. The Committee had noted that section 1 of Order No. 18 of 1973 lists the industries in which the employment of minors is prohibited. It had also noted that section 1(p) of Order No. 18 of 1973 states that children may not be employed for work involving the handling or use of lead, petrol, arsenic, phosphor or any substance listed in the table of occupational diseases established by Ministerial Order No. 17 issued on 21 August 1973. The Committee had further noted that section 28 of Ministerial Order No. 43 of 1979 (on the conditions to be fulfilled in workplaces in order to protect workers, machinery, enterprises, substances used to counter occupational hazards, health hazards and occupational diseases) covers the types of work and operations that can cause the diseases mentioned in Order No. 17 of 1973 concerning occupational diseases, as well as the enterprises in which it is prohibited to employ adolescents as determined by Ministerial Order No. 18 of 1973. The Committee notes that the list given in Order No. 18 was established in 1973. It therefore draws the Government’s attention to the provisions of Paragraph 10(2) of Recommendation No. 146, according to which the Government should regularly re-examine and revise the list of types of work to which Article 3 of the Convention applies, where necessary, in the light of scientific and technical developments. The Committee accordingly encourages the Government to review the list of hazardous work. The Committee once again asks the Government to supply a copy of Order No. 17 of 1973 on occupational diseases.

2. Consultation with the employers’ and workers’ organizations. In its previous comments, the Committee had requested the Government to supply information on consultations held with employers’ and workers’ organizations for the purpose of determining, either by the competent authority or by legislation, the types of employment or work which, by their nature or the conditions in which they are carried out, may compromise the health, safety or morals of adolescents. The Committee notes the Government’s statement, in its report, that consultations with the Kuwait Chamber of Industry and Commerce and the Kuwait Trade Union Federation were held for the purpose of determining the types of employment or work that may compromise the health, safety or morals of young persons.

Article 6. Vocational training. The Committee noted that according to section 20 of Act No. 38 of 1964, the Minister of Labour and Social Affairs may authorize work by young people undergoing apprenticeships on condition that the young persons concerned are at least 14 years of age, that they are certified to be medically fit for the work involved, and that all the procedures and conditions set out in an apprenticeship agreement are adhered to. The Committee notes the Government’s statement in its report, that no information is available on this point since there are no children engaged in vocational training. However, the Government indicates that it will provide information on the conditions set out for vocational training in its next report. The Committee recalls that by virtue of Article 6 of the Convention, the Convention does not apply to work done by children and young persons of at least 14 years of age in undertakings where such work is carried out in accordance with conditions prescribed by the competent authority, after consultation with the organizations of employers and workers concerned, where such exist, and is an integral part of: (a) a course of education or training; (b) a programme of training mainly or entirely in an undertaking, which programme has been approved by the competent authority; or (c) a programme of guidance or orientation. The Committee once again requests the Government to provide information on the conditions of work of children undergoing apprenticeships.

Article 9, paragraph 1. Sanctions. The Committee noted that section 97 of Act No. 38 of 1964, provides for a system of progressive sanctions in case of infringements of the provisions of the Act. The offender shall first be warned to stop the infraction. In case of non-compliance he/she is liable to a fine of 3 dinars for every worker employed on terms that contravene the provisions, and, should the violation(s) continue, the fine shall be increased to 5 dinars. The Committee’s understanding of this, in the light of the information contained in the Government’s report on the application of the Labour Inspection Convention, 1947 (No. 81), is that the amounts of the fines established when the Act was passed in 1964 have been revised, given that the report refers to fines of 100 and 200 dinars respectively for every worker employed on terms that contravene the provisions. Noting the low fine imposed on employers violating the provisions of Act No. 38 of 1964, the Committee recalls that under Article 9, paragraph 1, of the Convention, the competent authority shall provide for appropriate penalties. The Committee invites once again the Government to provide information on the revision of penalties provided under section 97 of Act No. 38 of 1964 in cases of failure to apply the provisions of the Act. It also requests the Government to transmit copies of the relevant texts.

Article 9, paragraph 3  Registers of employment. The Committee noted that under the terms of section 47 of Act No. 38 of 1964, the employer is required to maintain a permanent register of employees. The Committee reminds the Government that the register must, according to this provision of the Convention, indicate the age or date of birth, duly certified wherever possible, of any employee below the age of 18 years. The Committee notes the Government’s statement, in its report, that the worker’s date of birth shall be certified and employers shall indicate such information in their records. The Committee again requests the Government to provide a copy of a model register used by employers.

Part V of the report form. The Committee notes that according to the statistics provided by the Government in its report, 92 per cent of children aged 6 to 17 years were enrolled in school in 1997, and that this rate was 89.5 per cent in 2000. The Committee asks the Government to give further information on the measures envisaged to ensure that the legislation on child labour is applied. The Committee would also be grateful if the Government would provide information on the practical application of the Convention, including for example statistical data on the employment of children and young persons, including non-Kuwaiti citizens, extracts from the reports of inspection services and information on the number and nature of contraventions reported.

The Committee requests the Government to keep it informed of progress made in enacting or amending legislation. In this regard, it reminds the Government that it may avail itself of ILO technical assistance to bring its legislation into conformity with the Convention.