Tag Archives: labor laws

LABOUR LAWS, DISPUTES & CIVIL RIGHTS

There are three main legal codes governing labour conditions in Kuwait. The employment conditions of civil servants are regulated by the Labour Law for Government Employees. Those who work in the oil industry are protected by the Labour Law of the Oil Sector. And the Labour Law of the Private Sector governs employment condittions in private businesses. Persons in domestic service, such as maids and chauffeurs, however are not covered by any particular code and must rely for protection on general principles of law.

PRIVATE SECTOR LABOUR LAW
Labour regulations in the private sector are enforced by the Ministry of Social Affairs & Labour (MSA&L). The points discussed below are neither complete nor authoritative.

As well as domestic servants, persons on temporary contracts of less than six months are excluded from the scope of the private sector labour law. Where an employer’s head office is outside Kuwait, the labour law of the country where the employer has its head office, governs expatriates working in Kuwait, unless the employer has a branch in Kuwait which concluded the contract with the employee in which case Kuwaiti law applies.

HINTS FOR EXPATS

* Keep photocopies of all documents so that they will be easier to replace if lost.
* The work permit (idah amal), which is issued to process a residency application, also needs to be shown at various government offices for differing purposes, such as the traffic department when applying for a driving licence. Only two copies are issued. One is given to the Immigration Department when obtaining residency and one is kept by the sponsoring company. If the latter is lost, the Labour Department will not issue another copy. Therefore always make sure that a photocopy is obtained and guard it carefully.

Contract of Employment
An employee’s terms of service are contained in his employment contract, which may be for a fixed time or it may be indefinite. A fixed time may not exceed five years.

The labour law specifies minimum limits below which terms of service may not fall, and if a clause in his contract gives an employee a lesser benefit than his right under the law, he is entitled to the minimum specified by law for that particular term.

An employment contract may be verbal or in writing. In either case, it must show at least (a) the remuneration payable, (b) a description of the nature of the job, (c) the date of appointment, and (d) its duration (if fixed). Where a contract is verbal then, in the event of a dispute, either side can use circumsta-ntial evidence to prove what is in it.
If the contract is in writing, it must be in Arabic. A translation into another language may be attached but the Arabic version is authoritative.

An employee may be hired on probation for a 100 days at most. During this time he may be terminated without notice, though accrued indemnity but not holiday pay must be paid. An employee may not be put on probation more than once by the same employer.

Remuneration & Deductions
Remuneration includes basic pay, incentives, commissions, obligatory bonuses, gratuities from third parties and allowances from which the employee benefits (such as housing allowance), but excludes allowances on account of expenses and profit shares. Payment of a bonus is obligatory if it is stipulated in the contract of employment or in the by-laws of the firm or it has been paid in the same amount regularly every year.

An employee’s total remuneration must be used when calculating terminal indemnity or compensation on account of injury. Where an employee is paid on a time basis the last salary payable is used, but if he is paid on a piece-work basis then the average wage paid to him for his actual work during the previous three months is used.

There is no minimum wage. Salaried employees must be paid at least once a month. Piece-workers and those on hourly or weekly wages must be paid every two weeks.

Persons working for a subcontractor, who has failed to pay their salaries, may demand payment from their employer’s superior contractor to the extent that the latter owes their employer money for work done. When an employer goes bankrupt, the outstanding salaries and termination benefits of his employees must be paid before his other creditors.

An employee may not be obliged to buy products made by his employer. If he owes his employer money then not more than 10% of his salary may be deducted to pay off his debt and he may not be charged interest. Where an employee’s salary is attached on account of debts to third parties, the deduction is limited to 25% of his salary.

Working Hours
The working hours of an adult are limited to 8 hours a day and 48 hours a week. A rest break of at least one hour must be allowed after 5 consecutive hours of work. Rest periods are not included in the calculation of working hours. These standard hours may be increased or decreased by the MSA&L in certain cases, such as hotel workers.

Holidays
An employee is entitled to one full day off without pay a week. The traditional day off is Friday, but this is not a legal requirement in Kuwait.

An employee has a right to eight public holidays a year with full pay as follows: one day on Hijri New Year’s Day, one day on Ascension Day, two days each for Eid Al-Fitr and Eid Al-Adha, one day for the Prophet Mohamed’s Birthday, and one day for National Day. Liberation Day is not yet a statutory holiday in the private sector.

An employee is entitled to 14 days leave a year on full pay, provided he has completed one year of service, and 21 days after more than 5 years of continuous service. Official holidays and days of sick leave may not be counted as part of annual leave. The employer has the right to fix the date of leave. An employee must be given his holiday pay before he goes on leave and the last salary payable before the holidays must be used to calculate the amount due. If an employee’s services are tertminated then he is entitled to a cash payment in lieu of accumulated leave, irrespective of the number of years of leave due, and payment for the accumulated leave must be calculated on the basis of the last salary payable on the date of termination.

Sick Leave
Subject to a satisfactory medical report, an employee is entitled to sick leave for (a) the first six days of illness on full pay, (b) the next six days on 3/4 Pay, (c) the next six days on 1/2 Pay, (d) the next six days on 1/4 Pay, and (e) the next six days without Pay. This entitlement is the total entitlement in one year and not per period of sickness.

Overtime
An employee may be required to work overtime provided it is necessary and the employer’s order is in writing. Overtime rates are (a) 1.25 times the basic hourly rate for excess hours worked on ordinary days, (b) 1.50 times the basic hourly rate for all hours worked on the weekly day off, and (c) twice the basic hourly rate for all hours worked on public holidays.

Overtime may only be worked on 90 days in a year and is limited to 2 hours a day, 6 hours a week, and 180 hours a year. An employee has the right to refuse to work overtime.

Female Employees
A woman performing the same work as a man must be paid equal remuneration. The standard working hours for women are the same as for men.

But women may not work at night (8pm to 7am) except in clinics, pharmacies, hotels, nursery schools, homes for the handicapped, airline and tourist offices, theatres and Entertainment City. They may work up to midnight in cooperative societies and public utilities, restaurants, beauty salons, tailoring shops, banks and offices. Night time working hours may be extended by the MSA&L during Ramadan, and on Eids and public holidays. Employers are obliged to arrange transport for women working at night.

Maternity Leave
A woman is entitled to maternity leave to a maximum of 30 days prior to delivery and 40 days after delivery on full pay. Thereafter she may be absent from work without pay for up to 100 consecutive or non-consecutive days, provided she presents a medical certificate stating that she is ill as a result of gestation and parturition. The annual leave entitlements of a woman who makes use of her maternity leave privileges in any year are forfeit on a day-per-day basis until her annual leave entitlement for that year is extinguished.

Termination Benefits
When the employment is terminated, an employee is entitled to a lump sum payment called termination indemnity.
For those paid monthly, termination indemnity is 15 days remuneration for each complete year of service for the first 5 years and 30 days for each complete year beyond 5 years, but the total indemnity is limited to one and a half year’s remuneration. For piece-rate workers and those paid on an hourly, daily or weekly basis, the indemnity is 10 days remuneration for each complete year of service for the first 5 years, and 15 days tpay for each complete year beyond 5 years, subject to a limit of one year’s remuneration. In both cases part years are calculated pro-rata.

Pay per day is calculated by dividing the monthly salary in the final year of employment by 26. The monthly salary used to calculate daily pay must include the elements mentioned under ‘remuneration’ above.

An employee who resigns with less than five years service is not entitled to indemnity. One who resigns with five years or more of service is entitled to 50% indemnity. But employees who are made redundant (irrespective of length of service), who reach retirement age, who are disabled at work, or who die are entitled to full indemnity. And a woman who marries while she is an employee and who resigns within six months of marriage is entitled to full indemnity.

Disciplinary Notices & Penalties
All employee related regulations must be issued as circulars or bulletins written in Arabic.
Miscreant employees may be penalised provided the employer issues regulations specifying the acts that are punishable. Penalties must be progressive and are limited as follows:

ü only one punishment may be inflicted for each act of misbehaviour.
ü a penalty cannot be imposed for an act committed outside the work place unless it was related to work.
ü a pay deduction cannot exceed 5 days pay a month.
ü a suspension from duty cannot exceed 10 days a month.
ü a penalty cannot be imposed for any act once 15 days have elapsed since the act was proved or since the usual date for the payment of wages.

Termination
Where an employment contract is for a fixed period, it terminates automatically at the end of the period, but if both parties then continue to implement it, it is deemed to be renewed indefinitely under the same terms and conditions. If either party terminates the contract before the end of the fixed period (and there is no clause in the contract to cover this) then the party terminating the contract must compensate the other. Where termination is made by the employer, compensation is limited to the wage the employee would have earned from the day of termination to the expiry of his contract. Where it is the employee who quits, compensation is limited to the employer’s actual loss.

Where an employment contract is for an unlimited period, either party may terminate it by notifying the other in writing at least 15 days prior to termination (where the employee is paid monthly) or 7 days before termination (where the employee is paid more frequently). Either party may pay the other 15 or 7 days salary, as appropriate, in lieu of notice.

An employer has the right to terminate an employee without notice, and without paying indemnity and compensation, if the employee:

* commits a wrongful act resulting in serious loss to the employer,
* repeatedly disobeys the instructions of the employer,
* disobeys the employer’s instructions concerning safety at work on a single occasion,
* has been absent from work for more than seven consecutive days without due cause,
* has been convicted of a crime affecting honour, honesty or morality,
* commits an act against public morality in the work place,
* assaults a fellow employee, the employer or his agent at work or on account of work,
* fails to carry out his obligations under the terms of his contract or the labour law,
* has used fraud to obtain work, or
* reveals any secrets relating to his employment.

An employee has the right to quit without notice before the expiry of his contract, and to collect his indemnity and not pay compensation, if:
* his employer fails to abide by the provisions of his contract or the labour law,
* the employee has been assaulted by the employer or his agent, or
* to continue in work would endanger his health.
An employee’s contract is terminated if he dies. It may be terminated if he fails (without fault) to perform his work or he exhausts his entitlement to sick leave. In all these cases his indemnity must be paid.

An employee’s contract is automati-cally terminated if his firm goes into liquidation or merges with another, or there is a lockout, or the firm is sold or inherited, and in all cases the employee is entitled to his termination indemnity. Where the firm is sold or inherited, the new owner must settle the indemnity, though the employee may continue in service with the new owner while reserving his right to indemnity for his previous service.

Health & Safety
Employers are obliged to take precautions to protect their employees against physical hazards and occupational diseases at work. They are also required to ensure that places of work are clean, well ventilated, adequately lit and in sanitary condition. Employers must supply first aid kits containing medicines, antiseptics and bandages, and place them visibly within reach of employees. Detailed standards in these matters are contained in resolutions issued by the MSA&L in consultation with the Ministry of Public Health.

Employees who work in areas not serviced by public transport must be provided with suitable transport. If they work in localities far from populated areas, the employer must provide suitable accommodation, potable water and the means to obtain supplies.

Accidents
If an employee is injured at work, the employer must report the matter to the local police station and the MSA&L. The injured employee has the right to treatment, at the employer’s expense, in any government hospital or private clinic as the employer deems suitable. A doctor’s report, stating the period of treatment required, any disability arising from the accident and the employee’s fitness to continue in work, must be obtained.

During treatment, an injured employee is entitled to full pay for the first six months and, thereafter, half pay until he dies, or recovers, or is proved to be permanently disabled.

Compensation
An employee has the right to compensation for work-related injuries without having to prove that the employer was at fault, provided he did not injure himself intentionally or was not guilty of gross malpractice (such as expressly contravening safety regulations). But where his injuries have made him more than 25% disabled or he has died of them, he (or his family) will be entitled to compensation even if he was guilty of gross malpractice.

Compensation varies with the severity of the injury. Where death has occurred, it is the greater of (a) 1500 days pay or (b) the legal blood money (currently KD10,000). For total permanent disability, it is the greater of (a) 2000 days pay or (b) one and one-third times the legal blood money. For partial permane-nt disability, compensation is calculated as a percentage of what would be due for total permanent disability.

DISPUTES & CIVIL RIGHTS

Expatriates who are finding it difficult to get their legal rights in a work-related or other dispute may find the following organisations helpful:
Labour Departments at the Ministry of Social Affairs & Labour

The MSA&L has five Labour Departments, one in each governorate. Labour disputes should be referred to one of these departments, along with documents to substantiate a claim. The Department will give advice on the merits of a case.

HINTS FOR EXPATS

* Ensure that an employment contract is in writing.
* Check that the salary shown in the work permit reflects the salary shown in the employment contract as in the event of a dispute, the MS&L may rely on the work permit.
* Check that total remuneration is shown in the employment contract.
* Keep records of salary and other payments.
* Note that the time limit for filing cases in the Labour Court is one-year from the date employment is terminated.
* It is illegal for a foreigner to work in Kuwait except on a work visa and for their own sponsor. Part-time work requires special permission
* An employer cannot cancel an employee’s residence unless all dues and indemnities have been paid in full.
* An employer cannot give notice of termination during an employee’s sickness or injury.
* In case of dispute, always seek legal advice.

Kuwait Trade Union Federation
The federation has a special interest in preventing the abuse of expatriate labourers. It provides legal advice to labourers free of charge and also helps them to take action against their employers.

Human Rights Committee (HRC) at the National Assembly
Complaints on any matter, whether related to employment or other issues, can be sent to the HRC by letter or by fax, or can be discussed on the telephone or by visiting the National Assembly building in person. Persons who are refused entry to the National Assembly building should call the Committee directly. The HRC are particularly interested in expatriates who are having difficulty in obtaining their passports from their employers, and such persons are asked to fax a signed letter in Arabic stating the facts of their case, their civil ID and passport numbers, country of origin, and the name of their employer to the Committee who will treat the matter in strict confidence.

MSA&L Labour Departments
Kuwait City Tel 2406139 Fax 2406140
Hawalli Tel 2660228 Fax 2660227
Farwaniya Tel 4343871 Fax 4332456
Jahra Tel 4580055 Fax 4583821
Ahmadi Tel 3982178 Fax 3980986
Kuwait Trade Union Federation
General Secretary:
Tel 5616053 Fax 5627159
The HRC at the National Assembly
Tel 2458368 Fax 2455806

Complaints on any matter, whether related to employment or other issues, can be sent to the HRC by letter or by fax, or can be discussed on the telephone or by visiting the National Assembly building in person. Persons who are refused entry to the National Assembly building should call the Committee directly. The HRC are particularly interested in expatriates who are having difficulty in obtaining their passports from their employers, and such persons are asked to fax a signed letter in Arabic stating the facts of their case, their civil ID and passport numbers, country of origin, and the name of their employer to the Committee who will treat the matter in strict confidence.

Source – Kuwait Pocket Guide