Observation (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Koweït (Ratification: 1966)

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Observation

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Article 1 of the Convention. Definition and prohibition of discrimination in employment and occupation. Legislation and practice. With reference to its previous request to the Government to explicitly prohibit direct and indirect discrimination based on race, sex, colour, religion, political opinion, national extraction and social origin, with respect to all aspects of employment and occupation, and covering all workers, the Committee notes once again the Government’ reiterated reference in its report to sections 2, 6 and 46 of Labour Law No. 6 of 2010. The Committee takes note of Ministerial Decision No. 177/2021 (complementing the Labour Law No. 6 of 2010) which prohibits discrimination on the ground of sex, age, pregnancy or social status in all aspects of employment (section 1). While observing that additional grounds of discrimination have been added in legislation, the Committee notes that the Labour Law, as amended, does not: (1) mention all seven grounds of discrimination formally listed in the Convention; and (2) provide a comprehensive definition of discrimination, as well as a prohibition of direct and indirect discrimination, with respect to all aspects of employment and occupation. The Committee once again urges the Government to take the necessary measures without delay to: (i) explicitly prohibit in the Labour Law direct and indirect discrimination based on race, sex, colour, religion, political opinion, national extraction and social origin with respect to all aspects of employment and occupation, including recruitment, and covering all workers; and (ii) ensure that all workers are protected in practice against all forms of discrimination in employment and occupation and provide full information in this respect. In light of the absence of a definition of “social status” in the legislation, the Committee asks the Government to provide information on the interpretation of this ground of discrimination, and if possible, copy of any administrative or judicial decision interpreting the meaning of the ground of “social status”.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. The Committee welcomes the adoption of Ministerial Decision No. 177/2021, Prohibiting Discrimination in Employment in the Private Sector and Prohibiting Sexual Harassment in Workplaces (which provides that “sexual harassment in the workplace is prohibited in all its forms and means, including by means of new technological methods”). Regarding the procedure to be followed and penalties applied in cases of sexual harassment, the Committee notes that such Decision refers to sections 198 and 199 of the Penal Code, which state that the penalty for a sexual harassment offence ranges from a fine to imprisonment of up to five years. The Committee notes the Government’s indication that no case of sexual harassment has been signalled during the reported period. In this regard, the Committee wishes to point out that the absence or a low number of complaints regarding sexual harassment does not necessarily indicate that this form of sex discrimination does not exist. Rather, it is likely to reflect the lack of an appropriate legal framework, the lack of awareness, understanding and recognition of this form of sex discrimination among government officials, and workers and employers and their organizations, as well as the lack of access to or the inadequacy of complaints mechanisms and means of redress, or fear of reprisals (see the 2012 General Survey on the fundamental Conventions, paragraph 790). Furthermore, it recalls that criminal provisions are not completely adequate in sexual harassment cases because, inter alia, they do not always provide a remedy to the victim and are very unlikely to cover all forms of conduct that amount to sexual harassment. The Committee asks the Government to ensure that, in addition to the prohibition of sexual harassment, the Labour Law provides for a comprehensive definition that includes both forms of sexual harassment (quid pro quo and hostile work environment) in employment and occupation. It also asks the Government to provide information on: (i) any awareness-raising activities undertaken on sexual harassment in employment and occupation and on the social stigma attached to this issue, directed to workers, employers and their respective organizations, as well as to law enforcement officials; and (ii) the number of complaints of sexual harassment referred to the competent authorities, and their outcome (sanctions imposed and remedies granted). Finally, the Committee encourages the Government to identify and address the causes for underreporting.

Migrant workers. Sponsorship system. The Committee recalls 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. Also, 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 Public Authority for Manpower (PAM) (Section 6 of Administrative Decision No. 842/2015). The Committee notes that no complaints on discrimination and abuse of migrant workers were recorded during the reporting period. The Committee stresses again that, where a system of employment of migrant workers provides employers with the opportunity to exert disproportionate power over them, this could result in discrimination based on the grounds enumerated in the Convention, including race, colour, national extraction and sex (see 2012 General Survey, paragraph 779). The Committee notes that the Government’s report is silent on any measures taken or envisaged to review the sponsorship system. The Committee urges the Government to take proactive steps and address this issue, for example, by reducing the period before a migrant worker has the right to transfer to another employer without the approval of the current employer. Once again, it asks the Government to take proactive steps to ensure that all migrant workers, including women migrant workers, enjoy effective protection against discrimination on the grounds set out in the Convention, namely race, colour, sex, religion, political opinion, social origin, and national extraction. The Committee also asks the Government to provide statistical information on the number of men and women workers who have submitted complaints against their employers or sponsors regarding discrimination and abuse, and the outcome of such cases, indicating whether they have requested and been granted a change of workplace.

Discrimination on the basis of national extraction. Stateless persons or residents without nationality (Bidoons). The Committee notes the statistical information submitted by the Government according to which 7934 stateless persons were appointed to government Ministries between 2011 and 2023 (2087 to the Ministry of Health, 1022 to the Ministry of Education, and 4825 to the Ministry of Defence). The Committee observes that the Government does not indicate how “illegal residents” (referred as such by the Government) are protected against discrimination in employment and occupation, but only informs on how jobs are being provided for stateless people in response to the needs of the labour market. The Committee further notes the concern expressed by the United Nations Committee on Economic, Social and Cultural Rights, in its 2021 concluding observations, about the slow progress made in the implementation of its previous recommendations regarding the recognition of the status of Bidoon so that they can fully enjoy their economic, social and cultural rights, without discrimination (E/C.12/KWT/CO/3, 3 November 2021, paragraph 16). The Committee asks the Government to indicate whether the stateless persons or residents without nationality (Bidoons), who were appointed in Government Ministries, have since been granted a residence permit or regularized, to ensure that their migration status or lack of documentation do not exacerbate their vulnerability to discrimination in employment and occupation. The Committee also asks the Government to indicate the number of stateless persons or residents without nationality (Bidoons) whose situation has not yet been addressed.

Article 2. National equality policy. The Committee once again asks the Government to take the necessary measures to formulate, in collaboration with employers’ and workers’ organizations, and adopt a comprehensive national equality policy, that is, namely covering: (i) all grounds of discrimination in employment and occupation prohibited by the Convention, (ii) all workers, (iii) all sectors of activity, and (iv) all aspects of employment and occupation. The Committee requests the Government to provide information on any development made in this regard.

Article 5. Special protection measures. Work prohibited for women. Regarding the prohibition of night work for women and work that is hazardous, arduous or harmful to health or violates public morals (sections 22 and 23 of the Labour Law), the Committee notes the Government’s repeated indication that measures applicable to women are limited to maternity protection in the strict sense or based on occupational safety and health risk assessments, and do not constitute obstacles to the employment of women. Noting that the Government’s report does not contain any information in this respect, the Committee urges once again the Government to take the necessary measures to ensure that any restrictions on women’s access to work based on health and safety considerations be justified and based on scientific evidence and, when in place, be periodically reviewed in light of technological developments and scientific progress, to determine whether they are still necessary for protection purposes and do not constitute obstacles to the employment of women.

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