45 pct of employers do not allow domestic workers to go out on weekly day rest
This is the second part of the report on Rights of Domestic Workers Between Legislative System and Enforcement through Law No. 38 of Year 2015. — Editor
Brief overview of the Law The Law No. 68 of Year 2015 was intended to remedy legislative gaps related to the regulation of this category of migrant workers, as the Labour Law in the Private Sector did not apply to domestic workers despite the fact that they constitute a large proportion of foreign workers. Furthermore, the current legislative provisions failed to provide the legal protection necessary for this category, which therefore led it to face many violations according to the reports of human rights organizations. The law provided for many rights to domestic workers, and stipulated the commitment of the parties to the contract (employers – domestic workers – recruitment offices) with respect to wages, working hours, holidays, child labour, penalties and how to settle disputes. The comparison between Law No. 68/2015 regarding Domestic Labour and Convention No. 189 concerning Decent Work for Domestic Workers has been made in consideration of the following criteria:
- Protecting the Fundamental Rights of Domestic Workers(61): Law No. 68 of year 2015 regarding Domestic Workers included the protection of some of the Fundamental Rights of domestic workers that protect their human dignity by prohibiting the advertisement and promotion of workers in any humanly degrading manner and by prohibiting the categorization and discrimination on the basis of faith, gender, color or cost.
The Law also provided for the right of the worker to adequate housing in which adequate living conditions, food, clothing and medical treatment are available. The employer shall not be allowed to retain any of the worker’s personal identification document, such as a passport or civil card, except upon the consent of the domestic worker(62).
Whereas the Convention was more comprehensive by emphasizing measures to ensure the effective promotion and protection of the human rights of all domestic workers.
- Respecting and protecting the Fundamental Principles and Rights of domestic workers(63):
a. Freedom of Association and the effective recognition of the Right to Collective Bargaining which the Convention affirmed, but the Law failed to grant this right to domestic workers.
b. The Elimination of All Forced or Compulsory Labour. The Law provided for the latter by affirming that the relationship between the worker and the employer is a contractual relationship with the consent of both parties(64). As it prohibited the recruitment offices and their employees from charging the domestic worker any fees in return for employing the worker with an employer or arranging for the worker to stay employed with the employer(65), and the contract may not be renewed automatically if neither of the two parties expresses their wish to renew the contract at least two months before the end of the contract(66).
c. The effective abolition of child labour was affirmed by the Law by prohibiting the recruitment or employment of a domestic worker whose age is less than 21 years(67).
d. Elimination of Discrimination in respect of Employment and Occupation. The Law merely cited the prohibition of advertisement and promotion of domestic workers and categorizing them on the basis of faith, gender, color or cost(68), but failed to provide for the prohibition of discrimination in employment and occupation in all work aspects, and in particular the prohibition of sexual harassment and discrimination on multiple grounds including the sponsorship system and the promotion of equal opportunities and equal treatment.
- Effective protection against all forms of abuse, harassment and violence( 69): The convention recognized the need for taking the necessary measures that ensure the enjoyment of each domestic worker of an effective protection against all forms of abuse, harassment and violence.
The Law prohibited the recruitment offices from advertising and promoting the domestic workers in a humanly degrading manner, as it prohibited them from assigning domestic workers with hazardous works that may affect their health or insult their human dignity, while stating that The Department of Domestic Labour has the jurisdiction to handle any claims that arise from such behavior( 70).
In the event that a complaint is proven against the employer before the Department of Domestic Labour, no further entry visas will be issued for that employer for a period of 6 months (71) defined by the executive regulations of this law(72), and in the event of a recurrence, the period shall be doubled. The Law also prohibits the confiscation of workers’ passports, which is a frequent violation, but does not provide for dissuasive penalties through which effective protection of domestic workers can be guaranteed at the required level.
- Working terms and conditions provided for by the Convention on Decent Work for Domestic Workers:
• Written employment contract: The Law stipulated that it is not permissible for the employer to hire a domestic worker without a recruitment contract (bilateral or trilateral according to the circumstances) issued by the Department of Domestic Labour at the Ministry of Interior and written in both Arabic and English, containing the information of all the parties and the work details(73).
• Working hours and breaks: The Law did not equally treat domestic workers to the rest of the workers in terms of normal working hours as it set the length of work hours at 12 hours per day, interspersed with break hours(74), where an employee is entitled for a one hour break after 5 hours of work(75). Therefore, the domestic workers were not equal to the other workers to which the Labour Law in the private sector No. 6 of 2016 is applied, and which set the working hours at 8 hours per day or 48 hours per week. The Law recognized that the domestic worker has the right to weekly break as other workers(76).
• Free time: The Law did not tackle this issue at all, which are the periods during which domestic workers are not free to dispose of their time as they please and remain at the disposal of the household in order to respond to possible calls(77).
• Annual leave: The law provides for domestic workers the right to annual paid leave(78), but the Law failed to determine the duration of the leave, and even its implementing regulations did not determine the duration.
• Sick leave: The Convention recognizes the right of domestic workers to enjoy conditions that are no less favorable than those applicable to workers generally in relation to the social security protection, including maternity. However, the law did not provide for sick leave and only requires the employer to pay for the treatment and hospitalization of workers and compensate them for the injury, and did not mention maternity leave.
• End-of-service benefits: The Convention does not explicitly provide for end-of-service benefits for domestic workers, but refers to the issue of social security(79), while the law provides explicitly for an end-of-service benefit after completion of the contract period, equivalent to one month’s salary for each year(80).
• Minimum wage: The Convention emphasized the need of domestic workers to enjoy minimum wage coverage(81), and the Law provided for the minimum wage equal to KD (60) equivalent to ($ 200) according to Ministerial Order No. 2302 of year 2016 on the Rules and Procedures of enforcement of the Provisions of Law No. 68/2015 regarding Domestic Labour.
• Health and occupational safety: Every domestic worker has the right to a safe and healthy working environment according to the Convention(82), and this was further affirmed by the Law that prohibited the assignment of domestic workers with hazardous works that may affect their health or insult their human dignity, and the employer shall be obligated to provide medical treatment for the worker and compensate them for injuries if injured on the job(83).
• Minimum age: The Convention provided for the minimum age of domestic workers consistent with the provisions of the Minimum Age Convention, 1973 (No. 138), not lower than that established by national laws and regulations for workers generally( 84). The Law set the minimum age at 21 years and the maximum age at 60 years, and prohibited the recruitment or employment of a domestic worker, whether female or male, whose age is less than stipulated(85), as it punishes anyone who recruits a domestic worker younger than the age stipulated by imprisonment of no more than six months and will be required to pay a fine of no more than 500 Kuwaiti dinars, or one of the two punishments(86).
• Living conditions: The Convention emphasized the need to provide decent living conditions that respect the lives of domestic workers. The Law also required the employer the provision of adequate housing with decent livelihoods for domestic workers, and the provision of clothing and food. • Domestic workers’ documents: The Convention recognized the right of the domestic workers to keep in their possession their travel and identity documents(87). The Law also prohibits the employer from keeping in their possession any of the domestic worker’s personal identity documents( 88). • Residence and freedom of movement: The Convention recognized that domestic workers are free to reach agreement with their employer on whether to reside in the household, and are not obliged to remain in the household or with household members during periods of daily and weekly rest or annual leave(89). However, the Law failed to specify whether or not the worker was to reside with the family, but the prevailing practice in Kuwait is to provide independent housing for domestic workers within the family household. As for daily or weekly rest periods stipulated by law, the latter did not obligate the worker to remain in the household.
- Protecting domestic workers against the abusive practices of recruitment agencies: The Convention provides for a set of measures to be taken in order to ensure effective protection of domestic workers against the abusive practices of recruitment agencies(90):
a. Conditions for the operation of recruitment agencies for the employment of domestic workers: Through comparison, we found that the Law did not fail to mention the conditions of issuing licenses for recruitment offices and their renewal( 91), and also specified the bank guarantee amount at (KD 40,000) for personal licenses, provided that it is valid for two years from the date of application, as for commercial licenses, the amount is set at (KD 100,000), and in the event that the company sets up subsidiaries, the letter of guarantee shall amount to (KD 40,000 for each subsidiary) provided that it is valid for two years from the date of application( 92).
The law also emphasized the need to comply and respect the conditions for the obtainment of a valid license issued by the Ministry of Interior, and in the event that workers were recruited without a license, such offence will be punishable by law with a term of imprisonment for a period not exceeding 3 years and a fine not exceeding ten thousand dinars, and the penalty shall be doubled in case such offence is repeated within two years from the date of the final sentence in the first crime(93).
b. Ensuring that appropriate mechanisms and measures are in place in the event that recruitment offices engage in abuse practices against domestic workers: The Law recognized a set of mechanisms and measures to protect domestic workers from recruitment offices by imposing penalties, under the Kuwaiti Penal Code, for the crimes of extortion and illicit gains in the event that the recruitment offices, or any of their employees, charge domestic workers any fees in return for employing the worker or arranging for the worker to stay employed with the employer, whether such charges are direct or indirect(94).
The Law also prohibited recruitment offices from advertising or promoting domestic workers in any humanly degrading manner, or categorizing them on the basis of faith, gender, color or cost(95).
The Law also determined the administrative measures that shall be taken in the event that its provisions are violated through temporary suspension for a period of three or six months, and if the violation is repeated the period shall be doubled. As well, it specified the cases in which licenses are revoked(96).
- Settling disputes and complaints and effective access to justice: The Convention affirmed that each State Member shall establish effective and accessible complaint mechanisms and means of ensuring compliance with national laws and regulations for the protection of domestic workers( 97). The Law adopted gradualism as an approach that begins with negotiations, then the recruitment office’s intervention, followed by the Department of Domestic Labour, and finally the competent authority. The Law stipulated that any dispute that arises between the parties to the contract, the Department of Domestic Labour has the jurisdiction to settle such dispute, and if a settlement is not reached, the dispute is to be referred to the competent court(98).
In the event that a settlement is reached before such dispute is referred to court, it shall be discharged in a written contract. The Law also stipulated the extension of the residence permit of the domestic worker until a final decision is made on the complaint and until the worker is paid all due entitlements(99). In the event that a settlement is not reached, the dispute shall be referred to the civil court for consideration before the Labour Circuit as a matter of urgency, while exempting the domestic worker from all judicial fees before all levels of litigation, and while considering the dispute expeditiously within no more than one month.
The Department of Court Registrars is responsible for informing the disputing parties of the date of the session set to hear the case at least two weeks ahead of the session( 100).
- The measures that shall be applied to ensure the compliance with the Law to protect domestic workers: The Convention emphasized the need for implementing measures for labour inspection, enforcement and penalties with due regard for the special characteristics of domestic work. In this regard, the Convention recognized the need to strike a balance between the rights of domestic workers to protection, through inspection procedures, and the right to privacy of family members(101).
As for the Law, it has stipulated inspection procedures for recruitment offices, but failed to address the inspection procedures in the workplace of domestic workers, such as private residences or the like. Chapter Two (Methodology Section) This chapter refers to the field aspect of the study, in order to identify the views of domestic workers, employers, recruitment offices, and civil society organizations over the extent to which they are benefiting from the Domestic Workers Law No. (68/2015).
A questionnaire prepared for this purpose was distributed, and the analysis of its findings provided us with an indicator of the level of benefit from the Domestic Workers Law, and their rights in general. This part of the study encompasses a sample and a study instrument, in addition to the findings, analysis of responses, and recommendations accordingly. 1 Sample and Study Instrument This survey is based on a descriptive analytical approach. The questionnaires were marked with honesty and consistency in the selection of the questions.
The opinion of specialists was taken regarding the questions and their suitability to achieve the objectives of this study, not to mention that the questionnaire devoted to domestic workers was translated into English to facilitate the understanding of its content. Some of the questionnaires were distributed to the sample of the study through an electronic link, while also distributing a set of paper-based questionnaires, targeting four categories: “domestic workers, employers, recruitment offices, and workers of civil society organizations”. (400) electronic questionnaires and (200) paper-based questionnaires were collected, through which the understanding of the stratified sample of the Law No. (68/2015) was measured, as well as the law’s effectiveness and relevance, and their adherence to the provisions contained herein, in addition to seeking their personal opinion regarding the law and its contents. The questionnaires targeted 380 domestic workers (182 males and 198 females, 173 employers and 23 recruitment offices and 25 civil society workers, taking into account gender diversity among males and females). 2 Findings of the Study The Findings of the study will be manifested based on the views of the participants in the study (domestic workers, employers, recruitment offices, civil society organizations).
The findings will be presented, then an analysis of these information will be set forth separately in terms of the participating parties connected with Law (68/2015) consistent with the objectives of the study, and finally, a set of recommendations will be put forward after analysis. (Study One) Employers A. Description of the sample’s characteristics. The questionnaire was distributed to (173) employers having different education levels, age ranges, genders and nationalities. The demographic characteristics of this sample are described below:
• Gender Variable Form No. (1) shows that the males make up (45%) of the sample of the study composed of (173 individuals), while female employers make up (55%) of the total of the sample of the study, whose age ranges between (21- 64 years old).
• Nationality Variable Form No. (2) shows that most of the study sample of employers are of Kuwaiti nationality equal to (164), therefore constituting (94.25%) of the study sample, while the rest were of Egyptian nationality (2), Saudi nationality (1), Palestinian nationality (1), Jordanian nationality (2) and (3) from other nationalities. As for the number of domestic workers working for employers, the study shows that (50%) of employers have (1) domestic worker working for them, while (40%) have (2) domestic workers, (7%) have (3) domestic workers and (2%) have (4) domestic workers, whereas (1%) of the employers did not disclose the number of domestic workers working for them, that is with regard to female domestic workers. As for male domestic workers, the study shows that the majority of employers have (1) domestic worker, and the number of employers having more than (1) domestic worker does not exceed (12). Male domestic workers are for the most part either drivers or cooks. B. Responses of employers regarding Law No. (68/2015): The questions of the study covered subjects over the extent to which employers are familiar with Law No. 68 of year 2015, as well as its provisions, applications and effectiveness, since the employer shall comply with several obligations, among which paying the agreed upon monthly wage at the end of each month in accordance with a receipt voucher, providing food, clothing, medical treatment, hospitalization, and adequate housing with decent livelihoods, as well as refraining from assigning hazardous tasks to workers that may affect their health and refraining from confiscating the personal documents of workers such as the passport, in addition to other obligations related to employers.
The Employers’ responses to the subjects of the questionnaire were as follows:
- Are you aware of the existence of law No. 68 of 2015 regarding Domestic Labour in Kuwait? Form No. (3) shows that (108 individuals), equivalent to (62.2%) of employers, are unaware of the existence of Law No. (68/2015), whereas (39 individuals), equivalent to (22.4%) of the employers stated that they are aware of the Law to some extent. Only (13.79%) of employers know the Law. It is noted that the largest percentage of employers do not have the least knowledge of the Law that regulates their relationship with the domestic workers, despite its importance, as confirmed by employers.
- Do you agree on giving the domestic worker a ticket back to their country at the end of the employment contract? Form No. (4) shows that (157 individuals), equivalent to (90.7%) of employers raise no objection to giving the domestic workers working for them a ticket back to their country at the end of the employment contract, whereas only (14 individuals), equivalent to (8.09%) of employers refuse to give them a ticket.
- Do you agree on granting the domestic worker an end-of-service benefit equivalent to one month’s salary for each year worked at the end of the employment contract? Form No. (5) shows that largest segment of employers equal to (98), constituting (56.64%), refused to grant domestic workers the end-of-service benefit provided for by Law, whereas (42.19) agreed.
- In the event that you pay the salary in cash, does the domestic worker sign a cash receipt? Form No. (6) shows that (64.16%) of the employers do not take a cash receipt from domestic workers, whereas (34.68%) of employers take a cash receipt from domestic workers when paying the salary in cash.
- Do you deduct part of the domestic worker’s salary when committing a mistake or violation during work? Form No. (7) shows that (153 individuals), equivalent to (88.43%) of employers, do not deduct any amount from the domestic worker’s salary when committing any mistake, whereas a small percentage equal to (2.31%) did not object to the deduction in the event of a mistake, and only (8.67%) of employers deduct sometimes.
- Do you refrain from assigning domestic workers any hazardous works that may affect their health? Form No. (8) shows that (147) employers, equivalent to (84.79%), refrain from assigning the domestic workers any hazardous works, whereas (13.87%) of the employers assign domestic workers tasks that may be hazardous and difficult.
- Do you keep in your possession the personal documents, such as passport, of the domestic workers working for you? Form No. (9) shows that (91.9%) keep the personal documents of the domestic workers in their possession, whereas a small number of employers (7.51%) leave these documents in the possession of the domestic workers working for them. This reveals the non-compliance with the Law that gives the right to domestic workers to keep their personal documents, such as passport, and prohibits their confiscation by employers.
- Does the domestic worker working for you adhere to the instructions given to them? Form No. (10) shows that (147 individuals), equivalent to (84.97%) of employers, consider that the domestic workers working for them adhere to the instructions given to them, whereas (14.45%) of employers believe that the domestic workers do not adhere to the instructions given to them.
- Is there a written contract between yourself and domestic workers? Form No. (11) shows that (56.64%) of employers do not conclude an employment contract between themselves and domestic workers, whereas only (42.19%) of them conclude an employment contract between themselves and domestic workers, and (1.15%) did not answer the question.
- How many working hours is the domestic worker working for you assigned? Form No. (12) shows that (49.13%) of the employers assign the domestic workers working for them between (8- 10 working hours), whereas (38.15%) reported that domestic workers work for more than (10 hours) but no more than (12 hours), and (10.98%) assign the domestic workers more than (12 working hours).
- Do you pay additional fees to domestic workers when working additional hours? Form No. (13) shows that (39.88%) of employers do not pay additional fees to domestic workers when working overtimes, whereas (56.64%) of employers pay additional fees to domestic workers when working overtime.
- Do you grant the domestic worker working for you a weekly day rest? Form No. (14) shows a convergence of percentage between the employers who grant the domestic workers a weekly day rest and those who do not, where (28.32%) grant the domestic worker the weekly day rest, whereas (28.90%) refuse to grant them their weekly day rest. A large segment of employers, the percentage of which is equal to (42.19%), was hesitant as to this matter stating that they sometimes agreed on granting them their weekly day rest but not regularly. This indicates a lack of knowledge and commitment to Law (68/2015) that gives domestic workers the right to a weekly rest.
- Do you allow the domestic worker to go out on the weekly rest day? Form No. (15) shows that a large percentage of employers equal to (45.66%) do not allow domestic workers to go out on their weekly day rest, whereas (26.01%) of them do not object on allowing them to go out, and (27.16%) give them permission sometimes. This may be justified as the fear of employers from allowing domestic workers to go out and engage with undesirable people, thus leading to a situation that may pose dangers.
- Do you grant the domestic worker a paid annual leave? Form No. (16) shows that (89 individuals), equivalent to (51.44%) of employers, they refuse to grant the domestic worker a paid annual leave as provided by the law, whereas (59 individuals ) equivalent (34.10%).
- Do you allow the domestic worker to own and use a mobile phone? Form No. (17) shows a high percentage of employers equal to (94.79%) who do not object on allowing the domestic workers to own and use mobile phones, whereas (4.62%) of employers refused.
- Do you trust the domestic worker working for you? Form No. (18) shows that employers well trust the domestic workers, where (72.25%) of employers trust the domestic workers and (26.58%) of them do not trust them. This gives a slightly negative indicator of the environment, which requires follow-up and adjustment and which may be due to some bad encounters the employers have experienced with domestic workers or heard of, or because domestic workers have harmed one of the family members or have done material damage.
- Do you compensate the domestic worker for any injury suffered during work? Form No. (19) shows that a total of (129) employers, equivalent to (74.56%), compensate the domestic worker for any incident or injury suffered during work, whereas (23.12%) of employers do not compensate domestic workers working for them.
- Have you ever encountered a problem in which the domestic worker who worked for you has absconded? Form No. (20) shows that (96 families), equivalent to (55.49%), have experienced cases in which a domestic worker absconded, and (42.77%) of the families have not encountered such case. This issue deserves to be pondered because the recurring of this incident in which domestic workers abscond is a dangerous matter and the beginning of a problem that may arise if the numbers increase. This is a negative indicator of the relationship between the domestic workers and employers that leads domestic workers to abscond.
- In the event of a dispute between yourself and the domestic worker, who do you resort to or how do you deal with it? Form No. (21) shows that (53.75%) of employers choose to settle the dispute amicably without the interference of a third party. A small percentage of employers equal to (22.54%) of employers resort to recruitment offices, whereas (12.71%) resort to the Department of Domestic Labour to settle the dispute with the domestic worker.
- Has a dispute or misunderstanding ever arose between you and the domestic worker? Form No. (22) shows that (64.16%) of employers have engaged in disputes with domestic workers over varying periods, and only (41.04%) have had their complaints taken seriously as indicated in form No. (23), whereas (58) employers, equivalent to (33.52%), did not experience any kind of dispute.
- Has your complaint been taken seriously? Form No. (23) shows that (60%) of the (111) individuals who have experienced problems have not had their complaints against domestic workers taken seriously, whereas the complaints of (40%) of employers were handled and taken seriously. C. Key findings and remarks regarding the (Employers’) knowledge of the Law No. (68/2015), and their compliance with it: Employers’ responses show some observations that should be taken into consideration and followed up by decision- makers and people in charge of the domestic workers file, especially that the law No. (68/2015) was issued three years ago, where the law imposed obligations on all parties (the employer – the worker – the recruitment office), among which the employer’s obligations are considered to be the most important, and which entail many rights for domestic workers, such as the right to receive a return ticket at the end of the contract, end-of-service benefits and other rights related to working conditions such as ensuring appropriate housing, clothing, food and treatment costs, as well as not assigning any hazardous work to them that could affect their health or insult them.
It is necessary to assess the employers’ knowledge of the law, its implementation, and its effectiveness and impact on all parties involved. Some of these remarks related to employers will be discussed in the form of results as follows:
- The results show that large number of employers (62.2%) are not aware of the law no. (68/2015) despite its importance and the fact that they need it to regulate their relation with domestic workers.
- The majority of employers who were surveyed agreed on giving the domestic worker a return ticket to their country of origin at the end of the employment contract, with a percentage of (90.75%), whereas (8%) of them rejected this idea, nonetheless it is a right provided for by law.
- (56.64%) of employers refused to grant the domestic worker end-of-service benefits even though it is a right stipulated by the law. The legislator has endeavored through the aforementioned law to ensure equality between domestic workers and private sector workers who receive end-of-service benefits equivalent to fifteen working days for each year of the first five years, and one month wage for each following year, provided that the overall total of benefits does not exceed the wage of a year and a half for workers who are paid on a monthly basis(102).
- (84.79%) of employers stated that they do not assign domestic workers who work for them hazardous activities, where Law number 68/2015 set out, among the employers’ obligations, that it shall not be permitted to assign domestic workers any hazardous works that could affect their health or insult their human dignity(103). It was emphasized that special characteristics of home work should be taken into account, and where appropriate, conditions applicable to the same or similar type of work carried out in an enterprise, as well as promoting protection in the field of occupational safety and health through Convention No. (177)(104). The same convention stipulated that national laws and regulations on safety and health at work shall apply to home work, taking account of its special characteristics, and shall establish conditions under which certain types of work and the use of certain substances may be prohibited in home work for safety of reasons and health(105).
- Most of the employers (91.90%) retain the travel documents of domestic workers working for them, thus violating the provisions of law. It should be noted that the provisions of Law No. 68/2015 prohibited employers from keeping in their possession any documents or personal identification documents for the domestic workers such as their passports, or civil cards.
However, the same aforementioned law did not lay down any dissuasive penalties against employers who retain the personal documents of domestic workers, though confiscating passports is a frequent violation.