New labor law needs ‘clarity’

KUWAIT CITY, Dec 24: Even after the passage of the new Kuwait Labor Law by the National Assembly on Wednesday, questions remain on whether the new law will be applicable retroactively.Minister of Social Affairs and Labor Dr Mohammad Mohsen Al-Afasi and head of the Social Affairs and Labor Committee Dr Rola Dashti both said the law will not be applied retroactively, but a prominent Kuwaiti lawyer and constitutional expert Labeed Abdal responded by saying that he is not sure in what context the minister and the committee head made these statements and that all the finer details of the law would be clear only when it is published in the government’s gazette officially.Abdal was of the opinion that all employees in Kuwait, including those currently in service, can enjoy the full benefits of the amended indemnity law retroactively.The lawyer added that if the new labor law is not enforced retroactively, it would be meaningless.According to Article 51 of the new law, a worker will get complete end-of-service indemnity at the end of the contract period. The employee is entitled to full indemnity if the contract is terminated by the employer, or the employment contract ends without being renewed. A female employee can get full indemnity if she terminates the contract from her side due to marriage within a year from her marriage date.Article 52 states that the employee is entitled to half month’s salary for every year if the employee resigns after more than three years and less than five years in the service. If the employee resigns after five years but less than ten years of service, he is entitled to 75 percent of the monthly salary for every year. Beyond 10 years, the employee gets a full month’s salary as indemnity for every year of service. The total indemnity, regardless of service, cannot exceed 18 months salary.According to the old law, an employee is not entitled to any compensation, if he ends the contract before five years of service. But he gets 15-days salary for every year of service as indemnity for each year for the first five years, and one month’s salary for each year after five years if he continues in service or if he is sacked at any point. He, however, loses 50% of the indemnity if he resigns. The new law also prescribes fully paid leaves for employees on all official holidays, a day off every week, and 30 days of annual leave after nine consecutive months of work. After two years of work, an employee is allowed to take a paid leave of 21 days to perform his pilgrimage, provided that he or she has not performed it before. Leaves must also be granted to the employees on all the public holidays which have now been increased to 13 from 8. If workers are made to work on public holidays, they must be given a bonus of half-a-day’s salary in addition to a full day’s pay. The off-day must also be compensated for at a later date.Moreover, a worker is entitled to 40 days of paid sick leave, with full pay for the first 10 days, 75 percent pay for the next 10 days, 50 percent pay for the following 10 days and 25 percent pay for the last 10 days. Once all the paid sick leaves are used up, the employee is entitled to 30 days of unpaid sick leave.If a worker loses a first or second degree relative, he is entitled to a three days paid leave. Meanwhile, a Muslim woman who loses her husband can take a leave with full pay for four months and ten days. Non-Muslim women in the same situation are permitted a leave of 21 days.Employees, who meet with accidents on the job or on their way to and from work, will receive full salaries throughout the recovering period slated by a physician. If this period exceeds six months, then the employer pays half the salary until the injured employee recovers, dies or his/her handicap is confirmed. Expectant women are allowed a paid leave of 70 days as long as they deliver within this period of time. New mothers can also be granted an unpaid leave of four months to take care of their newborns. The law also prohibits employers from dismissing female workers during this period.With regard to termination of employees, the new law says that the employer must give a notice of three months and no worker can be terminated while on leave. The notice period for an employee to resign his or her job is also three months.According to the old law, the notice period, both for termination and resignation, was only 15 days.The law also prohibits employers from firing workers without a reason, as a result of activities in NGOs or because they demanded their rights. In case of time-bound contracts, either party that decides to breach the contract before its deadline must incur any losses caused by this decision.The Minister of Social Affairs and Labor is also obliged by the new law to reissue minimum wages for each profession every five years according to levels of inflation. Another important provision in the law mandates that salaries of all employees be sent to banks before the 7th of each month.Labeed, however, stressed that in principle the law must be applied retrospectively from the point of view of upholding human rights, which is what the real objective of the law is.Talking about the new labor law in general, Labeed noted that the most defining aspect of the amendments is the article specifying the establishment of a new authority to handle all labor-related issues including issuance of visas, work permits and so on. “According to the previous law, the Ministry of Social Affairs and Labor, as the name itself indicates, handled both labor issues and social affairs. Social affairs department concerns itself with tackling the problems of aged citizens, children, divorced women, poor citizens and so on. “These in themselves are mammoth tasks and the ministry was over-burdened with additional responsibilities of handling labor issues. With a separation of the two departments, namely social affairs and labor, the ministry can function more effectively.“The new authority will have a board of directors, inclusive of representatives from labor unions and chamber of commerce, and will help preserve the rights of employees and employers,” Labeed noted.According to article 9 of the new amended law, a public authority will be set up within a year with a judicial personnel and an independent budget. The authority will be named Public Authority for Work Force (PAWF). The article adds that the authority will be under the supervision of the Ministry of Social Affairs and Labor and the Ministry of Law. The latter will oversee the employment of expatriate workers based on employer demands. Further bylaws to detail the functions of the authority will be issued within a year after the enforcement of the new labor law.Another important feature of the new labor law, Labeed said, is the flexibility it provides for developments in future. Many articles allow ministerial decisions to augment the stated law. When asked if this clause would open doors for misuse, the lawyer said it is unlikely because any ministerial decision will be reviewed by MPs.Labeed said that the amended laws related to female workers have shown a marked improvement in their rights. “The noble intention of the law has been made much clearer now, which is to protect women from work environments that could be harmful to them from a moral or health-related perspective.“The law also prohibits employers of female employees from making them work beyond 10 pm. This in a lot many cases will protect women from being exploited.”According to article 21, female workers are not allowed to work in the night starting from 10 pm till 7 am the following day, except at hospitals, clinics, private medical centers and other institutions that are granted permission by the Minister of Social Affairs and Labor. This article is not applicable to the special working hours during Ramadan.Labeed noted that women working at cafes and Sisha joints are vulnerable to sexual harassment or sexual exploitation and other forms of violence. According to article 22 of the new labor law, it is not allowed to employ female workers in dangerous work atmospheres, and places that are hazardous to health. The female workers are not allowed to work in places that can affect public morality. Female workers are prohibited from working at places that provide services only to men. The ministry will issue a decision to define such work environments after due consultation with labor organizations and concerned organizations.Further in connection with female employees, the new law states that a working mother will be granted two hours every day from her working hours for breastfeeding. The conditions for this will be further defined by the ministry. Companies having more than 50 female employees or 200 mixed employees should provide crèche facilities for children under four.These, Labeed notes, are big steps in the direction of granting female workers greater advantages. When asked if the amendments in any compromises the rights of employers and tilts too much in favor of employees, Labeed said that employers have lost some of the privileges that they enjoyed in the old law, but this now more evenly balances the rights of the two parties. “Instead of looking at it as a tussle between employers and employees, it should be looked at as a human rights issue. We have now arrived on par with international laws to safeguard human rights. “Of course, when it is applied there will be more complexities, but there are provisions for resolving such problems.” Meanwhile, Head of parliamentary panel for Social and Labor Affairs Dr Rola Dashti told the Arab Times on Wednesday that the new labor law will be effective after six months and will not be implemented retroactively.“The government still has to put together the bylaws to regulate the mechanism for implementing the law and they have six months to accomplish this. It also needs to be published in the official newspaper. Some aspects, such as public holidays, will be affected by this law,” she explained.Furthermore, many workers and business people from different fields, both in the private and public sector, shared their opinions about the new law with the Arab Times. Matthew, an Indian who works as a flower arranger at a well-known wedding planning company said, “The old law has been very oppressive to many of us who work in the private sector especially in the fields of decorations, interior designing and flower arrangement. “Many of us come with degrees from our countries or experience, but we get very low salaries for the jobs we do. Sometimes this is because of racism based on our nationality. However, it was mainly because this country did not have a minimum wage rule for certain jobs. Hopefully, with the new law we will get a chance to be better paid and more respect for our qualification.”Randa is a 26 year-old Lebanese women, who works as a Research Development Manager in a fruit-growing company. She is very satisfied with the new law. “I am happy with the leaves that we are allowed to take. Working at my company I was not allowed any leaves during my first year, and they told me that they would reduce my salary for every day I left. “During my second year I was only allowed to go for 15 days on leave, and that was also with restrictions. Now this is my third year and hopefully with the new law I can get 30 days leave. I mean it’s normal that a person needs a month’s break from his work every year, especially as a foreigner I need to travel to visit my family every year.”Shady, a 32-year old Lebanese man, who owns a fashion atelier, says he feels that the law has not changed much. “I don’t think the law has done anything for owners of private businesses. “For example as an owner of a company, I need to have a Kuwaiti man who sponsors me and I have to pay a sum of money to him on a yearly basis. Sometimes the money we have to pay goes up to KD 1,000. The worst thing is when the sponsor ends up envying your successful business and works hard to take over it and simply throw you out.“As a foreigner I feel like I am always haunted with the fear of losing everything that I have worked hard to make in this country. So although the law has given more rights to laborers, it has not cancelled the fear factor of many foreigners.”Sherif, an Egyptian taxi driver also had his say about the law. “I personally do not think that this law will change anything; we are treated unfairly and we will continue to be treated unfairly. As foreign taxi drivers we are looked down at.“When, I first came here I was not given any job, I spent three months with no money, and sometimes I begged for food and money on the street. The Kuwaiti man who brought me here along with other workers did not provide everyone with employment. However, after three months I got an employment opportunity from a friend who worked as a taxi driver. His sponsor gave me the job.“The law could be better now, in that we may well be able to get our salaries regularly, or even better salaries, but I don’t believe it will change the ill treatment of our sponsor. I think that they should rather change the human rights law not the labor one.”Salwa, from Jordan, is a secretary at one of the investment companies and still does not feel the law has highlighted all issues of concern. “I’ m currently pregnant and I will be giving birth in around 4 months but I don’t see that the law gives any details concerning the rights of a mother after giving birth.”“In Canada for example a woman gets six months to one year paid leave, and her husband also gets leave in order for him to help her take care of the newborn baby. “However, this law does not seem to care much about the rights of a woman that gives birth and the need for her to take a long vacation to stay beside her new born. I’m even expecting to get fired if I take a longer vacation than usual after giving birth.”


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