Legal Clinic

I’ve been trying to find examples of calculation for oil sector but have been unable to do so. Please help me calculate my indemnity on the following information: – Oil Sector – 12 years service – KD 800 salary

Name withheld

Answer: While you do eventually fall under the Kuwait Labor Law, all such issues — for the oil sector employees — are governed by the Labor Law for the Kuwait oil sector.

Under that law, the calculation of the indemnity is not as direct as in the private as these calculations depend on individual contracts, focusing on the area where the concerned expatriates are employed.

As we don’t have any details of your contract, we are not in a position to calculate your indemnity.

First of all I would like to thank you for your awesome work on answering our legal questions. The reason for this mail is that I also have a legal question for you — regarding overtime. I would like to know if someone has a salary of KD 344 and he’s doing overtime on weekends, how should we calculate his overtime pay on the basis of the monthly salary?

Name withheld
Answer: To answer this question correctly we need to have a close look at Article 67 of the Kuwait Labor Law so as to leave no room for doubt because, besides the additional payment, you are supposed to get an additional day off instead of the one on which you worked.

People just talk of giving an additional 1.5 days salary (it used to be 1.25 before the current labor law) to employees working on weekends.

But where does this figure come from.

Just read on. Article 67 says “The worker shall be entitled to a paid weekend which is equal to 24 continuous hours after every six working days. The employer may call the worker for work during his weekend if the necessity arises. The worker shall be entitled to at least 50 per cent of his remuneration, in addition to his original remuneration and to another day off instead of one on which he worked. The above paragraph doesn’t affect the calculation of the worker’s rights, including his daily remuneration and his leaves. The right is calculated by dividing his remuneration by the actual working days, without including the weekends although these weekends are paid”.

Now, this is where the correct interpretation is needed.

Some of the people who don’t understand the first paragraph of this article will end up giving various erroneous interpretations but here is the correct one.

The employer is required to give only at least an additional 50 per cent of the daily remuneration (after dividing the monthly remuneration by 26) provided he gives an additional day off in lieu of the weekend on which the employee worked.

But what happens if the employer doesn’t want to give an additional off day. In this case, the employer will be required to make an additional one day’s salary to the employee.

This is the route taken by most of the big and good companies and they end up paying an additional one and a half days remuneration to the employee for making him work on his off day.

Now, taking the salary that you have quoted, the working for over time will be as follows:

Total monthly remuneration = KD 344

Therefore the daily remuneration = 344 / 26 = KD 13.230

So, if the employer gives an additional day off he only has to pay an additional KD 6.615 (at least) to the employee.

But if he doesn’t give the additional day off — as is the case with most of the companies — the employer has to pay an extra KD 19.845 to the employee for making him work on the weekend.

But a lot of companies are indulging in the wrong practice of just dividing the monthly salary by the number of days in that month and paying the resultant amount as overtime.

This is only a totally wrong practice, it is also a violation of the Kuwait Labor Law for which a company can be taken to court.

Please provide me the required  advice on the following through  your Legal Clinic.  I am sponsoring my daughter on a  family visa. She is 24 years of age  and not married. She has a valid  Kuwait residence until May 2016.  She left for India in January 2015 and  had to come to Kuwait by July 2015  within the 6 months entry period but  unfortunately she could not enter during that time because of her commitments in India. She is working in  India.

Kindly advice on the following:

1) Whether her residence is still  valid?

2) Can she come to Kuwait any- time before May 2016?

3) If her residence has been can- celled can we renew her it?

Name withheld  

Answer:  Unfortunately, your  daughter’s residence is no longer  valid because as soon as you go past  the six-month limit — even by one  minute — the residence is automati- cally cancelled.  So, in this case, your daughter can  no longer return to Kuwait on the  same residence nor can it be renewed.

To get your daughter back to Kuwait,  you must apply for a new visa and once  she lands in the country she must go  through the same procedure all over  again like any other “first-time” expatriate in the country.

This includes the  medical examination and all the other  procedures to be completed within 60  days of arrival in the country

My family stayed in Kuwait on an  Article 22 (dependent) residence  from 2002 to 2012. In July 2012, I  cancelled my family’s residence  and handed over the Civil IDs to  the passport office before sending  the family back to India.

Now, in August 2015, my family  returned to Kuwait — again on  Article 22 residence — and they  have already received new Civil  IDs which are valid for two years.

Please note that only my son’s  residency and Civil ID numbers are  new. He was born in Kuwait in  2002. He is 13 years old.

Kindly advise whether it is mandatory to have only one residence  and Civil ID number per person. If  so, please detail the procedure to  get the old residency and civil ID  numbers for my son.

Name withheld

Answer:  Normally, the Civil ID  and residence numbers do not  change for the duration you remain  in Kuwait. Even if you remain out of  the country for a very long time and  return you get the same numbers.

It is very rare, although this does  happen sometimes, for various reasons but it does not matter nor does  it reflect in anyway on your stay in  the country.  So, don’t worry about it, let the  new numbers given to your son  remain as these are because all the  efforts that you put in to get the num- bers changed will go in waste.

I received my driving license for Kuwait in May 2008, and was living in Farwaniya governorate. I am an engineer. I moved to Hawally governorate in 2010 and upgraded my qualification to ‘project manager’ in 2011 (in my iqama the job title mentioned is project manager). I need to know if updating the address and qualification on the driving license should be done as soon as possible, or at the time of license renewal (the license expires in 2018). What is the procedure to update the address and qualification in the Traffic Department?.

Name withheld

Answer:
You don’t need to make the changes now. You can do the same when the license expires in 2018. These changes can be made in the request that you make for the renewal of your driving license.

First of all, I would like to thank you for your free legal advice to many expatriates here in Kuwait. My inquiry is as follows: I have been working as a secretary in a Kuwaiti company for the past 6 years (Joining Date: 23.01.2010).

My salary on the last work permit was KD 260, and all the transactions in this regard have been made by the company through the bank. But my problem is that the total salary has three components (Basic KD 210 + food KD 25 + allowance 25 = KD 260).

Right now I am planning to finish my job with the company with a view to get a final exit with a notice period of 3 months now (My last day with the company may be 02.05.2016) Can you advise me on the calculation criteria for my indemnity for a working period of 6 years 3 months with the salary of KD 260.

Name withheld
Answer: Before we directly answer your question, we need to have a close look at the word “remuneration”, which is what should be used — according to the Kuwait Labor law, enacted on Feb 20, 2010 — for all calculations linked to overtime pay, annual leave pay and even indemnity. The reason for going back to the Labor Law is that most of the companies in the country — even the so-called reputed ones — are interpreting the law wrongly, for their own benefit.

Article 55 of the Kuwait Labor Law states that “Remuneration means the basic payment the worker receives or should receive in consideration of his work in addition to all the elements stipulated in the contract or the employer by-laws. “Without prejudice to the social allowance and the children’s allowance granted by the virtue of Law 19 of the year 2000, the remuneration shall include the payments made to the worker on periodic basis such as bonuses, benefits, allowances, grants, endowments or cash benefits”.

Now, we need to have a look at Article 62 of the Kuwait Labor Law which says “The calculation of the worker’s entitlements shall be made on the basis of the last remuneration received by the worker”.

Unfortunately, as we said earlier, most of the companies are interpreting the law according to their own liking and calculating the indemnity of their employees only on the basic pay, which is totally wrong.

After having said all the above we come specifically to your case and your indemnity, if done correctly, should be calculated as follows:

Total pay = KD 260 Service = 6 years 3 months

For first five years indemnity will be calculated on the basis of 15 days pay for each year = 75 days but these days must be divided by 26 (working days in a month) = 2.88 months salary

For the remaining service the calculation must be made on the basis of one month’s pay for each year = 1.25 months pay

Total indemnity = 4.13 months pay = 4.13 x KD 260 = KD 1,073.800.

But according to the Kuwait Labor Law, if your service is over 5 years but less than 10 years you get only twothirds of the indemnity if you resign.

So, you will get only KD 715.860 as your total indemnity if the company calculates the same correctly.

My problem is that a few months ago I asked the company where I am working for a release and they agreed on the condition that I give them KD 500. I told the company officials that I didn’t have the money but then they asked me to sign an I.O.U. for KD 500 and I could give them KD 100 every month.

I signed this I.O.U. then they started playing games with me, sometimes saying that the sponsor was out of country.

Then when I checked with the Ministry of Social Affairs and Labor they filed an “absconding case” against me. My new sponsor talked to them but to no avail. The other problem came when I received a call from a lawyer that I have to pay this company KD 2,000 as I had, according to him, signed the I.O.U. for this amount. I told him I had signed an I.O.U. for KD 500. He then ordered me to come to his office otherwise he would take me to court. I don’t know anything about the Kuwait Labor Law. Please help me.

Name withheld
Answer: The company can’t make you pay for the release as this is illegal but by signing an I.O.U. you have made things slightly difficult for yourself and you might end up having to pay this amount.

But having said that, the best thing you can do at the moment is file a complaint against the company with the Ministry of Social Affairs and Labor through the Labor Office in your area.

It doesn’t matter that the company has filed an “absconding case” against you. There has been a change in the laws on “absconding cases”.

Unlike before, all expatriates against whom these cases have been filed won’t be automatically deported. The Interior Ministry now investigates all these cases and the sponsor has to prove that his employee is really absconding. Secondly, the company will also be questioned about the money for which you have signed the I.O.U., which they will have to produce.

So, they can’t say that you have signed an I.O.U. for KD 2,000 when you have only signed one for KD 500. If the investigation authorities find out that the company is charging for “releases” it could face very severe sanctions. So, file the complaint and make things easier for yourself.

I would like to inquire about my wife’s residency. Her residency is expiring in March and my residency is expiring in May. Can I renew my wife’s residency for one year or more? If yes what is the procedure and if not what steps should I take for the renewal of residency.

Name withheld
Answer: Before we directly give a “yes or no” answer to your question it is important to draw your attention and that of all our other readers — who face similar situations — to a statement made in the first week of January by a senior Interior Ministry official so that these readers have a clear understanding of the issue.

This statement was made by Major General Talal Marafi, Director General of the Residency Affairs Department at the Ministry of Interior. Marafi said that “ the validity of the residence of dependents of expatriates will be linked to the validity of their sponsor’s residence. This is to ensure that the residence of the sponsor’s children and wife do not exceed that of the sponsor”.

Marafi, stressing the need of a quick implementation of this decision, said this had been done because various violations had surfaced in this regard.

Giving examples, Marafi said there were cases in which an expatriate husband (with a one-year residence) gets deported but his wife and children stay in the country because they could have a residence which could be as long as five years.

Citing another example, he said an expatriate (with a two-year residence) divorces his wife but his dependents remain on his sponsorship because their residence could be anywhere from three to five years.

So, we hope that we have now answered your question but just in case you still harbor some doubts the answer is “No”.

In such a case, there are two things you can do here…firstly you need to renew your residence before the residence of your wife expires. Once your residence is done, you can renew your wife’s residence for the same duration.

Just in case your residence is not renewed by the time your wife’s residence expires, you should get a temporary residence (Article 14) for your wife.

You will get this residence for one month at a time and a maximum of three months. This will ensure that your wife’s stay in Kuwait remains legal and you don’t have to pay a fine. It will also afford you enough time to renew your residence.

I would like to inquire that if a company does not give indemnity to an employee, what should that employee do? And which supporting document needs to be presented to the Labor Office so that it can take any action against the company and ensure that the indemnity of employee is paid to him. In view of my current situation I need your valuable suggestion as soon as possible.

Name withheld
Answer: If a company does not pay an employee his indemnity, the employee should file a complaint with the Ministry of Social Affairs and Labor, through the Labor office in his area. All the employee will need is proof of the duration of his service with the company and a record of the last pay he received.

He can get this certificate about the service from the company as it is obligated under the Labor Law to provide the employee a service certificate while the pay record can be obtained from the bank where his pay was deposited every month. In case the company refuses to give the service certificate, the Ministry of Social Affairs and Labor can find out the same from its records.

My brother-in-law will enter Kuwait on 1st March 2016 at 9 am on a family visit visa which is valid for “1 month”. He is booked on Kuwait Airways to leave on March 31, 2016 at 9 pm.

Kindly let me know whether the one month mentioned on the visa is a calendar month or is actually 30 calendar days.

Further, what is the penalty if he leaves one day late and can the same be paid at the airport?

Name withheld
Answer: In this regard it is very important to understand one thing— while at the bottom of the visit visas it is clearly mentioned that the visitor is allowed to stay in the country for “one month”, the Immigration Department considers the one month to be “30 days” and not the calendar month. So, in your case, your brotherin- law will be required to leave the country by 30 March midnight and not a minute beyond that or you will be required to pay a fine of KD 10 per day that he overstays.

Please also understand that this fine has to be paid at the Immigration Department in your area and not at the airport in this regard. Payment at the airport is “sometimes” allowed during amnesty for residence violators.

The fine can be paid even in advance if you know that the overstay is going to occur. Having said the above, it is important to remember — although you have not asked a question in this regard — the visitor could end up being blacklisted for at least a year if he overstays. The same sanction could also be applied to the sponsor and he may not be allowed to get a visit visa for anyone for one year. So, the best thing in this regard would be not to overstay and leave the country before the end of the 30th day.