Legal Clinic

  • Factory Visa Transfer

    After working as a technician in a factory (on an Article 18 work permit) for the last 2 years and 1 months I resigned as I had received a good offer from another company.

    After working in the new company for 1 month, my current mandoub (company representative) is telling me that my visa can’t be transferred as it is a masna (factory).

    Please answer my query as I am in trouble because my visa will expire in July this year.

    Name withheld

    Answer: Unfortunately, your mandoub (company representative) is right because the current Public Manpower Authority and the Ministry of Social Affairs and Labor rules forbid the transfer of the mazna (factory) visa.

    The only thing that you can do is get another visa, leave the country and return on the new document or approach the Undersecretary at the Ministry of Social Affairs and Labor to sanction your transfer to the new sponsor without having to leave the country.

    Your case is aggravated by the fact that your tenure in the country — after being hired from abroad — is less than three years, which means that even if the Ministry of Social Affairs and Labor has no objection to the transfer, it will not do so (although it can) because a person after being hired from abroad must serve at least three years in the country before seeking a transfer. But your case is totally different in the sense that there are restrictions on the transfer of factory visas.

  • Deported from Kuwait want to come back

    My mother worked with a Kuwaiti family from 1990 to 2004 before she had some problems with the family. The family then filed a case against her (absconding from house). Then they handed her over to a police station. My mother was jail in for 20 days before the Interior Ministry officials took her finger prints and sent her to India.

    This happened nearly 14 years back.

    My question is: can I bring my mother to Kuwait on a visit visa or any other visa. My salary is KD 250 while my wife’s salary is KD 200. How to apply for her visa. Please give some suggestions. I have asked many people but no one is giving me a proper answer

    Name withheld
    Answer: You have not mentioned whether your mother was deported after being convicted by a court of law or she was administratively deported — without being taken to court — for absconding from her place of work. If she was convicted by a court before deportation and sentenced to jail, for even one day, she will not be allowed to return to the country.

    Not only that, according to a Gulf Council Cooperation (GCC) treaty a person convicted by any GCC state is not to be allowed entry by any of the other GCC states. But from your question it seems that your mother was administratively deported before she was even taken to a court and that the 20 days she spent behind bars was at a police station or at the Deportation Center.

    In such a case, a person who is administratively deported from Kuwait is not allowed to re-enter the country for at least one year, after which the person’s relatives can approach the Interior Ministry office in Al-Dajeej to have the ban lifted.

    The decision to keep the ban or lift it is totally in the hands of the Interior Ministry and the decision has to be accepted. So, if the ban is lifted, you can apply for a visa at the Immigration Department in your area. Again it is totally at the discretion of the Immigration Department to accept or reject your request.

  • Monthly pay slip

    When you leave your work place and transfer to another employer, should the visa transfer processing fees be shouldered by the employee or the employer? A friend of mine is seeing some salary deductions by his current company, which says the deductions include the “visa transfer fee” of KD 60.

    He has been working with the current employer for almost 10 months now and still having KD 12 deducted monthly (total of KD 108 already) + some other deductions about which he doesn’t know from his salary.

    I advised him to ask for a copy of his pay slip to track this deduction, but his superior told him that they don’t issue salary slips as this is not required by the company and it is not written in the Kuwait Labor Law as well.

    In this case how will he be able to keep track of his compensation/ deduction? Is it really not required in all the companies in Kuwait to issue a monthly pay slip?

    Name withheld
    Answer: The company is not required to give you a monthly pay slip, although a lot of good companies do regardless of this fact, but your company is required to give you all the details of the deductions from your salary.

    Before we go on, we would like to clarify that all the fees of the transfer fees plus the residence fees (including the health insurance) are required to be paid by the company hiring you and not the employee.

    Unfortunately, this is not the case in a lot of companies and the Ministry of Social Affairs and Labor has failed miserably to ensure that the expatriates don’t suffer in this regard.

    A lot of good companies, however, pay all these fees regardless of the length of service of their employees.

    Coming back to the deduction issue, go to your Accounts Department and request for the deduction details. You have the right to know about all the deductions from your pay.

  • Nurse faces problems

    I was hired by a local clinic on Sept 1, 2013 and started working as a nurse — although I did not have the Ministry of Health license — on a KD 300 monthly salary. I was locally hired and hold a work permit of Article 18 (position: receptionist).

    Earlier on Aug 29, 2013 I had signed the 1st contract, which was an open contract, but on March 1, 2014 the management forced us to sign a new contract in line with their application for ISO (upgrading the clinic) — so everything had to be uniform as they said. We were clearly told that if we did not sign the new contract, we would be terminated.

    The 2nd contract has a fixed time for 3 years and valid from the date on which we signed the contract, which is March 1, 2014.

    Now have a great opportunity in Qatar and it is for this reason that I wish to leave. I resigned on May 10, 2016 and since I cannot work for the whole notice period of 3 months (in fact only one month), I have informed the clinic that there is no need to pay my 3 years indemnity and my vacation leave pay for 1 month. I have insisted that I have to go by June 9, 2016 because that would be my joining date in Qatar.

    If they allow me to go but on the condition they want me to pay for the rest of the contract, until March 2017 (3 years of the contract from March 2013), is it possible that I refuse to pay them.

    This is because it’s a big amount besides the fact that I don’t want to work here for three years. I’m a bachelors degree holder and I will not stay in Kuwait and I will be working in another country.

    Can you please help me out with my concerns so that at least I can fight back for my rights because there are a lot of reasons to be exempted from the contract even it is for 3 years.

    Name withheld
    Answer: Before we give you an answer, we would like to draw your attention to articles 47 and 48 of the Kuwait Labor Law enacted on Feb 20, 2010.

    Article 47 states that “In event where the term of the work contract is specified and the contract was unrightfully terminated by either party, the terminating party shall compensate the other party provided that the amount of compensation shall not exceed the remuneration of the worker for the remaining period of the contract. “The damage suffered by the parties shall be determined according to the trade custom, the nature of the work, the duration of the contract and in general all considerations that may have an effect on the damage with regard to its existence and extent. All debts due to the other party shall be deducted from the value of the compensation.”

    Article 48 states “The worker shall have the right to terminate his work contract without notification and shall be entitled to his end of service benefit in any of the following cases:

    a. If the worker does not abide by the terms of the contract or the provisions of the law

    b. If the worker is assaulted by or by provocation from the employer or his deputy

    c. If continuing work will endanger his safety and health pursuant to the decision of the medical arbitration committee at the Ministry of Health

    d. If the employer or his deputy committed an act of cheating or fraud with regard to work conditions upon signing the contract

    e. If the employer has accused the worker of committing a punishable act but the final verdict acquitted him f. If the employer of his deputy commits an act that violates public morals against the worker

    A close look at the above two articles and various Ministry of Social Affairs and Labor decisions will result in the following observations:

    a. You can be made to pay for the uncompleted part of the contract because you have a fixed-term contract

    b. You will not only have to pay for the uncompleted part of the contract, you will also have to pay for the uncompleted part of the notification

    c. You don’t have any reason for seeking immediate cancellation of your contract because you are only now — after receiving a better offer — talking about being forced to sign the second contract although you have been working in line with the terms and conditions of that particular contract for the last over two years. The company has also not harmed you in any other way

    d. You are only entitled to half your indemnity because you have resigned with a service of over three years but less than five years.

    From all the above, you will by now have realized that you can’t leave the company nor initiate any action against the firm for not releasing you from the contract.

    The company can, however, take you to court for violating the terms and condition of the contract. Your sponsors can also have a travel ban imposed on you if you don’t compensate them … and there is nothing you can do about it because the law is with the clinic in this regard.

    And that travel ban will only be lifted if you compensate the clinic or serve out the remaining part of your contract.

    The only way you can get out of this situation is by sitting down with your sponsors and amicably finding a solution to the problem.

    Force or going to the court or the Ministry of Social Affairs and Labor won’t get you anywhere.

    So, discuss the issue amicably with your superiors and find a way out of the situation … that is the only route you can take.

  • Change in Job Designation on Work Permit

    I have done a Bachelors in Computer Science (BSC) and the certificate has been approved and attested by Ministry of Justice. Can I use the word “Engineer” as job designation on my work permit. My company had put the designation as “maintenance technician” but I want to have this changed. Kindly provide me with the different kinds of job designations which can be mentioned on the Izz ne Amaal (work permit).

    Name withheld
    Answer: Except for telling you that you can’t get the designation of “computer engineer” on the work permit we can’t offer you much help. You can’t get the designation of “engineer” because just having done your Bachelors in Computer Science doesn’t qualify you to be a “computer engineer”.

    To get that designation you have to do Bachelors in Computer Engineering. We accept the fact a lot of people managed to get the designation of “engineer” but that was when the concerned ministry was not aware of the various qualifications in the computer field.

    Now the Ministry of Social Affairs and Labor specifically asks you to produce a degree in the various fields. About the other designations available to you, this is something you have to discuss with your company. The reason for this is that every company is given a certain number of work permits for certain specific jobs. This is done on the demand of the company and the company has to fill in those categories and not create new designations every time it hires an expatriate.

    For example, your company might have 10 vacancies for computer engineers (provided these people have the required degrees), 20 for computer programmers, 25 for computer technicians etc. What the company does is hire people to fill the various vacancies in this regard and it can’t cross the limit laid down by the ministry in each category.

    So, once a category is filled the company tries to adjust its employees in the other categories available. This is the reason, if you look at the work permits, you will find that even managers of companies having the designation of different categories (sometimes much below their status).

    But the company has no option. Even in your own company, you may find computer specialists having the designation of typist (although they get the right salary) on their work permits. So, discuss the issue with your company and ask them about the various slots available to the company plus the best slot that you can be fitted in.

  • School Transport

    I am a regular reader of Arab Times, especially the Legal Clinic and I truly appreciate the service. In past you have answered my queries and I am truly thankful for that but now I have another one.

    Recently in India, a school going child died due to negligence of school bus driver. The school bus driver had dropped the child on the other side of the road and a car hit her when she was crossing the road to go to the other side where her mother was waiting for her as usual. In all Indian news they were discussing the law for school transport. And I came to know as per the law all the school buses should have the following: CCTV camera in school bus. GPS in school bus. Along with bus driver, an attendant should be there to help the children get in and out of the bus safely.

    My childrens are studying in one of the reputed Indian schools in Kuwait and the buses do not even have school logo as they have outsourced school transport and there is no CCTV, no GPS, no attendant/ maid in the buses for children’s safety.

    Kindly enlighten me about the Kuwait law regarding school transport.

    Name withheld
    Answer: Unfortunately, there is not comprehensive law for private school transport. The only thing required by the Private Education Department is that the schools ensure the safety of the school-going children if they are using the school transport, which in most cases — as you have also pointed out — has been outsourced.

    Yes, some of the schools have a very good transport system with a very set of rules to ensure the safety of the children. They also have supervisors or attendants aboard these buses but then such private school transport is very rare.

    What we, on the other hand, see in Kuwait is a very low level of transport (in most cases, not all). Some of these buses and vans break down almost every day.

    There are no attendants aboard most of such transport. We also notice a very unique situation here in the middle or lowerend level of schools — although even parents keep quiet on the issue — is that some of this transport is privately run by some of the teachers. In not too rare cases, some teachers are even seen driving these vehicles.

    The Ministry of Education and the Private Education Department only step in when there is some accident. The school is then sanctioned … after a lot of noise everything returns to “as it was before”. On the other hand some of the schools have defined a very strict set of rules for the safety of the students using the school safety.

    Not only do these schools provide the printed copies of these rules to the parents, they have also posted these on their websites. And they regularly hold inspections, plus solicit views of the parents, to ensure the implementation of these rules.

    Some of these rules focus on the behavior of the students on the buses, fixing of the bus stops by the schools, handling of complaints from the parents (in some cases these go directly to the principal), reservation of seats or fixed seats on the transport, eating and drinking aboard the buses, compulsory use only those buses on which students have been allotted a seat (and not any school bus), how/where the buses are supposed to pick/drop the students, how buses must be marked, etc.

    Having said the above on the situation in the private sector schools, the situation is very different in the public schools where Kuwait has a very organized school transport system. It also mostly doesn’t have supervisors aboard the buses. Almost 10 years ago — in 2007 to be exact — Kuwait initiated a pilot project to have retired teachers on board these buses as supervisors but then didn’t further implement these project because of the huge costs involved.

    There are around 1,200 schools in Kuwait with almost 75 per cent of these government and the rest private but compared to the other countries in the GCC it’s school transport system is not at the same level.

    Some of these countries have a very good school transportation system. In the end, we would like to stress that most private schools — especially the good ones — have very strict school transport rules although these are not given too much importance by a number of them. It all depends on the parents to ensure that the schools implement these rules. If you feel that any of these schools is not ensuring the safety of your child you can file a complaint, first with the principal of the school and then with the Private Education Department, located in Salmiya, Area 10. You can also approach the Ministry of Education.

    While Kuwait has rules and regulations for the school transport it lags behind other GCC states in this regard.

    For example, Abu Dhabi in 2014 started implementing a very strict system in this regard by issuing a “School Transport Guidebook” which focuses on new regulations to ensure that all school buses have the highest standards of safety and security.

    These buses have also to be equipped with advanced technology applications with the technical specifications of these buses laid out. With almost all GCC countries following suite, it is likely that Kuwait may also in the near future introduce and implement a “school transport law”. But for the time being, parents must ensure that the schools of their children implement the rules and regulations they have designed for themselves.

  • Settlement by cheque

    Please advise if it is a must for a company to pay by cheque an employee’s final settlement dues? If the due amount is very small figure, say less than fifty dinars, can the company pay such small amounts by cash or is it a must to pay by cheque?

    Name withheld

    Answer: No, you don’t need to make the payment through a cheque as this can be done through cash payment, especially since the amount of the payment is very small. You have, however, to get a receipt of payment signed from the employee to avoid any problems in the future.

  • Transfer visa

    From April 2007, I have been working in Kuwait for a private company.

    My residency is on an Article 18 project visa, that project has already been completed, but due to some problems my residence has not yet been transferred to any other project.

    Currently I am only a temporary extension visa for three months. My wife is also staying with me as a dependent and recently I got a better offer from a private company.

    My current profession on my visa is driver, having a valid driving license up to 2021. I have some doubts which I wish to have cleared before proceeding with the new offer.

    1) Is this visa transferable (release)

    2) Can I use the same driving license in the new place

    3) If I get a release, can I continue my wife’s visa (dependent) up to valid period.

    4) In case (if I don’t get a release) and I have to leave the country, can I come back on the same profession (driver) on a new visa soon.

    5) With new residency, as per the new rules what is the salary cap for getting a new (dependent) visa.

    Name withheld

    Answer: You have not mentioned whether you were hired from abroad or transferred locally to this firm. And that makes a lot of difference these days as the law is different in both cases.

    We have, however, answered a number of similar questions and in a lot of detail of the last few months. One of these answers is reprinted below for your information and that of the other readers.

    “It’s now not a question of what your work status is or how long you have spent with the firm on a government project visa…instead what is being considered is whether you were hired for the project from abroad or you joined the firm on a local transfer.

    “So everything will be in your favor, if you are already in Kuwait and you are planning to join the government project on a local transfer or have already joined a government project on a local transfer. This means that you will not have any problems ( and that too without having to leave the country) transferring back to a private sector but remember that you will have to work with the new firm for at least a year before you can apply for a release.

    We would like to bring the following to your attention.

    Over an year ago — in March 2015 — after issuing a similar verdict on Jan 11 of the same year, Manpower Public Authority Director Jamal Al-Dousary issued an administrative decision allowing some expatriates working on government projects to transfer their visas from one sponsor to another.

    This made things easy for only some of the expatriates but a lot of them misunderstand the situation and think that there is a blanket ban on transfer of government project visas.

    But this is not the case and this is where a clarification comes into play and sets the ground rules for the transfers that are allowed.

    Workers on government projects were in the past only allowed to transfer their visas to different companies but under the sponsorship of the same employer after the completion of their contracts.

    But now the above decision clarifies that laborers contracted locally from the private sector or transferring from dependent visas can transfer to other sponsors according to the previous conditions, which are:

    1. Conclusion of the project’s tenure
    2. Working for at least one year for the first sponsor
    3. Getting the sponsor’s approval for transferring.

    So, this makes it very clear that if you transferred to this project locally from another sponsor / company then your transfer is allowed.

    In the end, as a result of the above decision, we would again like to stress that if you joined the government project on a local transfer you should have no difficulty in transferring your residence to the private sector after one year but if you were hired on this project from abroad then you can forget about transferring to the private sector unless there is a drastic change in the rules… which doesn’t look likely in the near future.

    On the other issues that you want to have addressed we have the following advice for you.

    You can only use the same driving license with the new firm if your designation on the new work permit remains unchanged. This means if the designation is changed, you lose the license.

    If your work permit is transferred than you will be able to retain the residence of your wife for the length of your residence but if your residence is cancelled then her residence will also be cancelled.

    Yes, if your residence is cancelled and you have to leave the country you can return to Kuwait on a new work permit which shows your designation as driver but you have to remember that once your residence is cancelled your license will also be automatically cancelled. You will then have to apply again to have it renewed after re-entering the country and getting the new residence.

    While there has been a lot of talk / rumors about the hike in the salary cap for dependent visas, it still remains KD 250. The Interior Ministry had planned to raise this to KD 500 but the proposal was rejected by various departments. Now the Interior Ministry says that it has so far not received any instructions to revisit the issue.

    ❑      ❑      ❑

    The Arab Times invites questions on all aspects of Kuwaiti law. If you face a problem, or need specific advice on any legal matter, from commercial and investment law to divorce and labour, send questions to the Managing Editor, Arab Times, P.O. Box 2270, 13023  Safat, Kuwait, or Fax to 24818267. E-mail: [email protected]

     

  • Indemnity

    I joined my current employer on June 6, 2011. I got a termination notice from the company on 4th April 2016 with the notice period of 3 months (Last date of service as July 3, 2016) due to the contract expiry. Now the company is ready to release me at any time due to the client requirement of transferring me to another contract. Based on my joining date, I will complete 5 years of service with the company by 5th June 2016. Request you to please provide clarification to the following queries: Does it make any difference to my indemnity if I get released earlier than 5th June 2016 (5 years service) or after 5th June 2016. How much will be my end of service benefits in the two cases i.e. if I get released by May 31, 2016 and June 15, 2016 (Monthly is salary – KD 1,200 while my leave balance as of April end is 13 days)

    Name withheld

    Answer: Before we go on, we need to have a close look at Article 44 (d) of the Kuwait Labor Law enacted on Feb 20, 2010. Article 44(d) says that “The employer may exempt the employee from work during the period of notification but shall count such period within the worker’s period of service. The employer shall pay the worker all his entitlements and remuneration for the period of notification”. So, it really doesn’t matter whether you are released before 5th June, immediately or after the last day of your notification i.e. July 3, 2016, your indemnity must be calculated until July 3, 2016. Please also remember that you are entitled to the full indemnity because your services are being terminated by the company.

    Please keep in mind that when an employee is terminated he is always entitled to the full indemnity regardless of the period of service. It’s only when you resign you get half the indemnity if your service is between three to five years and two-thirds if your service is five to 10 years. And once you have put in 10 years service you get the full indemnity even if you resign. So as your service will be only a few days over the 5 year-period we will take the same as 5 years for the calculation of your indemnity which will be as follows.

    15 days for each year of service = 75 days But these 75 days have to be divided by 26 (working days in a month) = 2.88 months pay = 2.88 x KD 1,200 = KD 3,456 So KD 3,456 is the amount you should get as your indemnity whenever you are given the release, just because of Article 44(d). We would like to draw your attention to another very important aspect of the Kuwait Labor Law i.e. when your service is considered until the end of the notification period, your balance of leave must also be calculated until that date.

    This means your leave balance will be 16 days and not 13 days and these 16 days must first be divided by 26 (working days in a month) = 16 / 26 = 0.6154 x KD 1,200 = KD 738.480 So, KD 738.480 will be the payment for your annual leave balance which means your total dues = KD 738.480 + KD 3,456 = KD 4,194.480

  • School working hours

    I work in a private school in Kuwait and my nationality is British. My school (employer) is increasing my workload. I would like to know the maximum amount of lessons that the Ministry of Education allows international teachers to deliver. I would also like to know the duration of lessons.

    I believe my school (and many others in Kuwait) is breaking the regulations by making us teach up to 35 lessons a week.

    Name withheld

    Answer: No, neither your school nor others are breaking the law by making you teach up to 35 lessons a week because according to the Kuwait Labor Law you can be made to work up to 48 hours a week.

    This means that you are required to work a maximum of 8 hours a day unless you have a contract which says otherwise. With each period of 40 minutes, with a break of five minutes between each period and a recess of 20 minutes, a half a morning assembly (for some schools), schools normally have a timing of 7.30 am to 2.00 pm (six and a half hours) and sometimes more. So, even if 6 periods of 40 minutes each are squeezed in during the school working hours, you would still have ample time for other activities at the school.

    Please remember that it is very normal for schools to take the working hours for teachers as the time actually taken for periods in the classrooms. Not only that when schools advertise teaching jobs, it is clearly mentioned (in most cases) that you are required to take anywhere between 30-36 periods a week plus devote at least two hours a day to other school activities.

    So, even all these do not add up to 8 hours a day (for schools which have only a 5-day week, the 6th day’s hours are divided over the 5 days).

    You can’t complain about the issue unless you are made to work over 8 hours a day (6 hours in Ramadan) or you have a contract which clearly mentions that you are required to teach for a certain number of periods and you are made to work more than for what you were contracted.

    Yes, you will say that you are required to put in a number of hours daily to prepare for the classes, attend extra-curricular activities and other activities related to the school plus mark books … which is why schools normally schedule only 5 to 6 periods a day (some even less) so that the teacher is not required to work over 8 hours a day.

    If, however, you feel that the school is violating the terms of your contract you can report the matter to the Private Education Department, located in Block 10, Salmiya, or file a case against the school with the Labor Department in your area.

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