Observation (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 29) sur le travail forcé, 1930 - Koweït (Ratification: 1968)

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Observation

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Articles 1(1) and 2(1) of the Convention. Freedom of domestic workers to terminate employment. Over a number of years, the Committee had been drawing the Government’s attention to the exclusion of migrant domestic workers from the protection of the Labour Code, and requested the Government to take the necessary measures to adopt a protective framework of employment relations that is specifically tailored to the difficult circumstances faced by this category of workers.

The Committee notes the Government’s indication in its report that certain decrees and ministerial decisions were adopted, which aim to provide domestic workers with more protection, including Decree Law No. 40/1992 and Ministerial Decision No. 617/1992 regulating the rules and procedures for obtaining licenses for the private recruitment agencies supplying domestic workers and similar workers, as well as Ministerial Decision No. 1182/2010, which defines the rights and obligations of each party in the recruitment contract (agency, the employer, the employee).

Regarding the freedom of domestic workers to terminate employment, the Government indicates that the worker should be informed about all the modalities of the recruitment contract before its signature, including the rules of termination of the contract, and that it is on a voluntary basis that the worker agrees to conclude the contract. In case of any dispute between the parties to the contract, they should resort to the Domestic Labour Department and apply Kuwaiti laws on all matters that do not have an explicit text in the contract (section 7(3)).

Furthermore, the Government indicates that under section 13 of Ministerial Decision No. 200/2011, regulating work in the private sector, it is possible to change the work permit for workers living in the country after a stay of one year without interruption, with the consent of the employer.

The Government further enumerates various measures taken to ensure the protection of migrant workers from abusive practices, including the draft Bill on the regulation of the employment of domestic workers; Ministerial Decision No. 194/2010 prohibiting the retention of identity documents of migrant workers in the private sector and in the oil sector; Ministerial Decision No. 103/a of 2012 establishing a telephone line for receiving complaints; the construction in 2007 of a shelter for domestic workers, as well as a new one that could receive around 700 workers. The Government also indicates that during 2011, 89,685 transfers to other employers of domestic workers occurred.

While noting this information, the Committee highlights the importance of taking effective action to ensure that the system of employment of migrant workers, especially migrant domestic workers, does not place the workers concerned in a situation of increased vulnerability, particularly when they are confronted with employment policies such as the visas “sponsorship” system and subjected to abusive employer practices, such as retention of passports, non payment of wages, deprivation of liberty, and physical and sexual abuses. Such practices could turn their employment into situations that could amount to forced labour.

The Committee therefore expresses once again the firm hope that the domestic workers Bill, referred to above, will be adopted without delay. It also requests the Government to provide information on any practical measures taken to protect migrant domestic workers from abusive practices that could amount to the exaction of forced labour, facilitated particularly by the visa “sponsorship” system, which prevent this category of workers from freely terminating their employment.

Articles 1(1), 2(1) and 25. Trafficking in persons. Referring to its earlier comments, the Committee notes once again the Government’s indication that the Bill on combating trafficking in persons, which is registered under Decree No. 266 of 2008, has yet to be adopted by Parliament. It also notes the Government’s reference to section 185 of the Penal Code under which anyone who brings a person in or out of the country with the intention of selling that person as a slave, or anyone who buys or offers someone for sale, is punishable with five years of imprisonment and a fine.

The Committee once again expresses the firm hope that the Bill on combating trafficking in persons will be adopted in the near future and that the Government will provide a copy once it has been promulgated. Pending the adoption of the Bill, the Committee once again requests the Government to provide information on the application in practice of section 185 of the Penal Code, to which the Government refers in relation to the punishment of slavery like practices.

Article 25. Penal sanctions for the exaction of forced or compulsory labour. Over a number of years, the Committee has been drawing the Government’s attention to its national legislation that does not contain any specific provisions under which the illegal exaction of forced or compulsory labour is punishable as a penal offence. It invited the Government to take the necessary measures, for example by introducing a new provision to that effect in the legislation. The Government referred in this regard to various penal provisions (such as sections 49 and 57 of Law No. 31 of 1970, on the amendment of the Penal Code, or section 121 of the Penal Code of 1960) prohibiting public officials or employees from forcing a worker to perform a job for the State or for any public body, as well as to section 173 of the Penal Code, which provides for the imposition of penalties on anyone who threatens another person physically or with damage to his/her reputation or property with a view to forcing the victim to do something or to refrain from doing something.

The Committee recalls, that under Article 25 of the Convention, the illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and the penalties imposed by law must be really adequate and strictly enforced. Noting that the Government’s report contains no information in this regard, the Committee once again requests the Government to take the necessary measures in order to give full effect to Article 25 of the Convention. Pending the adoption of such measures, the Committee requests the Government to provide, in its next report, information on the application of the above penal provisions in practice, supplying copies of the court decisions and indicating the penalties imposed.

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