Observation (CEACR) - adoptée 2011, publiée 101ème session CIT (2012)

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

Articles 1(1) and 2(1) of the Convention. Vulnerable situation of migrant workers. Freedom of domestic workers to terminate employment. The Committee previously noted that the new Labour Code (Law No. 6, 2010) excludes domestic workers from its scope (section 5), and that the rules governing the relationship between domestic workers and their employers are specified by a decision issued by the competent Minister.

The Government indicates in its report that the Minister of Interior Resolution No. 1182/2010, which amends some provisions of the previous Ministerial Decision No. 617/1992 on the rules and procedures for obtaining licenses for the agencies supplying domestic workers and similar workers, provides for certain guarantees for these categories of workers, such as the minimum wage, the maximum number of working hours, the right to weekly holidays and annual paid leave, as well as compensation for occupational injuries. The Committee notes that the model contract for recruiting domestic workers, annexed to the Ministerial Decision No. 617/1992, provides that the contract between the employer (“the sponsor”) and the domestic worker must be concluded for a number of years specified in the contract and is renewable for similar periods, unless one of the parties notifies the other of its intention not to renew the contract. Such notification should be made at least two months before the expiration of the contract (section 4).

Regarding the freedom of domestic workers to terminate employment, the Committee notes from the report of the International Organization for Migration (IOM) on “Labour migration from Indonesia. An overview of Indonesian migration to selected destinations in Asia and the Middle East” (2010) that all migrant workers, including domestic workers, are legally allowed to take up employment only with the “sponsor” who issues a residence visa under his authority, and cannot easily transfer from one employer to another without permission of the initial “sponsor”.

The Committee also notes that the situation of foreign workers, especially domestic workers, was discussed during the ILO technical assistance mission which visited the country in February 2010. Furthermore, following the discussion by the United Nations Human Rights Council of the Universal Periodic Review of Kuwait in September 2010, the Government reiterated its acceptance “to revoke the sponsorship system and replace it with regulations in accordance with international standards” (A/HRC/15/15/Add.1).

The Committee further understands that steps are being taken to draft a domestic workers bill, which, in addition to the mandatory model contract and other measures taken to support migrant domestic workers, could further improve domestic workers’ rights.

Referring to its comments addressed to the Government under the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Committee highlights the importance of taking effective action to ensure that the system of employment of migrant workers, including 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 expresses the firm hope that the domestic workers bill referred to above will soon be adopted, and that it will provide for a protective framework of employment relations that is specifically tailored to the difficult circumstances faced by migrant domestic workers. In this regard, the Committee urges the Government to ensure that domestic workers are not prevented from exercising their right to freely terminate their employment and that they are fully protected from abusive practices and conditions that amount to the exaction of forced labour. Furthermore, the Committee hopes that, in its next report, the Government will provide information on the measures adopted to protect migrant workers, in particular from abuses that may arise from the visa “sponsorship” system.

Articles 1(1), 2(1) and 25. Trafficking in persons. Referring to its earlier comments, the Committee notes the Government’s indication that the Bill on combating trafficking in persons still has to be adopted by Parliament and approved by the Emir, in accordance with the relevant constitutional procedures. The Committee 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. Please supply information on the activities of the national committee for combating human trafficking, which shall be set up under section 15 of the bill. Pending the adoption of the bill, the Committee once again requests the Government to provide information on the application in practice of sections 138 and 173 of the Penal Code, to which the Government referred in its previous report in relation to the punishment of human trafficking.

Article 25. Penal sanctions for the exaction of forced or compulsory labour. In its earlier comments, the Committee observed that the national legislation does not contain any specific provisions under which the illegal exaction of forced or compulsory labour is punishable as a penal offence, and invited the Government to take the necessary measures, for example by introducing a new provision to that effect in the legislation. It noted that 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) prohibiting public officials or employees to force 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 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 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 regarding this issue the Committee expresses the firm hope that the necessary measures will be taken in order to give full effect to Article 25 of the Convention. Pending the adoption of such measures, the Committee again requests the Government to communicate, 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.