Legal Clinic

We have a number of queries related to calculation of leave salary and leave entitlement of our company staff. We would also like to know how their leave salary is to be calculated as we have failed to find any law on some of the issues.

We have a 5-day working week with Friday and Saturday being off. We are also entitled to 30 days leave as per Kuwait Labour Law, enacted in February 2010.

For calculating the leave that can be taken by an employee do we consider a week as consisting of 5 working days per week which is the actual thing in our case, or 6 working days as our company says the Labour Law considers only one day per week as the official day off.

Also for calculating leave salary do we divide the total remuneration by 26 or 22 as we work only for 22 days in a month?

Name withheld

Answer: We have answered similar questions on the issue a number of times but we will do so again for the benefit of our readers.

First of all, your company is right. You have to consider the working week of six days while calculating your leave because giving you two days off is the internal policy of the company as it has divided the 6th day’s hours over the five days. You still put in about 48 hours a week but these 48 hours are divided over five days instead of six. As you must have noticed you are putting in a minimum of 9 hours a day.

So, as far as this issue is concerned, you consider the working week as six days in spite of the fact you have a two-day weekend.

Secondly, because of the above reason, you have to divide the total monthly remuneration by 26 (number of working days in the month according to the law to calculate the leave salary and not by 22).

In the end, please remember that you are entitled to 30 working days annual leave per year…which means that all the weekly off days (Fridays) and official holidays falling within the leave should not be counted in the leave.

In this case also, only one day per week is not to be counted and not both the weekly off days.

I have been given a commercial visit visa by a company in Kuwait. Can it be transferred to work visa once I arrive in Kuwait. I am a graduate (degree attested) and have Microsoft certifications. Do I need to do a medical in India?

Name withheld

Answer: The rules on this issue are changing so fast that you really don’t know what tomorrow will bring. But talking about the current situation, transfers are currently being allowed from commercial visit visa to work permits.

You have, however, to remember that you will be allowed to transfer only to the firm which sent you the visa and not to any other company.

Secondly you don’t need to get a medical examination done in India. But remember to check once again for the current situation on the rules of transfer of the commercial visit visa before you leave your country so that you don’t land in a fix after your arrival in Kuwait.

First of all, I would like to appreciate your efforts of replying to all our questions with the most reliable answers. Please also guide me on what should be done next in the following scenario:

I am an IT post-graduate and have been working in a private company since December 2014. My sponsor owns various companies in Kuwait. At the time of my recruitment, the company transferred my residency from visa Article 22 (dependent) to visa Article 18 (work permit) i.e. I was hired locally and residency was registered with one of my sponsor’s company.

My current residency was renewed without any contract and registered with my same sponsor’s other company. For e.g. my sponsor owns two companies, DEF Ltd and PQR Ltd.

When I joined, the employer in the work permit was DEF Ltd. But when my residency got renewed, it got changed to PQR Ltd.

Now I am getting a good offer from another private company. Can I accept the other company’s offer or will I have to wait for a year as my residency was registered with my same sponsor’s other company?

Name withheld
Answer: First of all please remember that when you are working in the private sector, you are not working for individuals but for companies, which means that you are being sponsored by a company.

This being the case, you can’t transfer to another firm until you have spent at least one year with this company.

Before we conclude, we would like to talk about another point you mentioned in your question. Although you have addressed just casually, it is very important for you and all our other readers.

You mentioned that you “did not sign” any contract while transferring to this firm. Please understand that the contract is an essential part of the transfer process or any other process which involves the procurement of a work permit.

Without a contract you simply can’t get a work permit. This is an essential requirement regardless of whether you are getting the work permit for the first time, extending the residence or transferring the residence to another sponsor.

Simply put – no contract, no residence. So, one of the many papers (in Arabic) which you must have unknowingly signed — without having a look — was the contract. So, look at the papers before signing.

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I am working for an international company in Kuwait for the last 5 years and before that I worked for 5 years for the same company in Saudi Arabia with no interruption of my employment contract except the geographical relocation. I did not receive the termination benefits when I left Saudi Arabia.

Now upon my termination, the company is offering me gratuity based only upon my 5 years in Kuwait whereas I have been employed for 10 years by the same company.

The company says it will also pay me a termination gratuity for my time in Saudi Arabia, but each case is based on a 5-year term whereas I would get a higher gratuity if they considered the 10 years as a single term as per the Kuwait Labor Law.

Which is correct, please?

Name withheld
Answer: This all depends on your contract plus the laws of the countries where you have served. You have to read the contract carefully again to understand what all benefits are due to you.

You must also see whether the service according to the contract has to be counted as continuous or separately as you jump from country to country.

Because if nothing is mentioned about the service being continuous then things will be as we elaborate below. Having said that we must mention that the problem here lies in the application of the law because the Kuwait government is only responsible for the service you put in for that firm while in this country, and not for any service that you put in before you arrived at Kuwaiti shores.

You also need to understand that yours is a case of “multiple jurisdictions”, in your case of Saudi Arabia over the first five years of your service and then Kuwait for the remaining period. You must also understand that to work in Kuwait, if you are already working somewhere else in the GCC or to work in any other GCC state if you are already working in Kuwait, you are first required to cancel the contract, work permit and residence of the country where you are currently working.

This means that you must get all your benefits, in full, when you cancel your contract in another GCC country – like Saudi Arabia in your case – before you get a work permit and start working in Kuwait.

So, in the practical application of the GCC laws, your company is right in the calculation of your benefits. In spite of the above, we would advise you to have a close look at you contract – or should we say contracts if you signed one in Saudi Arabia and another one on arrival in Kuwait.

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Can I extend the family visit visa, currently valid for 1 month, for my mother. And if not, can I transfer her to a tourist visa — valid for 3 months — even though she has already entered Kuwait. Finally what are requirements that I need to fulfill to get a tourist visa for my mother.

Name withheld

Answer: Please remember family visit visas for the immediate family — spouse and children — are for three months while for other family members these are for one month only.

The Interior Ministry has stressed a number of times that the family visit visas can neither be extended nor can these be transferred to any other type of visa. So, simply put, your mother will have to leave the country and come again – at a later date – on a new visit visa.

Please also remember that, according to Kuwait law, you can apply for a new visit visa only six months after the visitor’s departure from the country. Well, that’s the law but sometimes – only on issuance of new visit visas – the Immigration Department does bend the rules a little on compassionate grounds.

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Hi … is it possible now to transfer government project visas to the private sector?

Name withheld

Answer: We have 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. This means that you should also 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 on this government project 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.

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You have answered this question several times, but since the rules are changing frequently kindly clarify this issue for me and those who are like me.

I got a driving license on 2-7- 2006 and this will expire on 2-7- 2016. When I got the license I was an accountant. But later on, in 2012, my profession was changed to clerk. Will this affect my license renewal?

Name withheld

Answer : No the renewal of your driving license won’t be affect because it is only some categories — driver, mandoub, housewife and student — which are being targeted as regards the change in designations. So, you don’t have to worry about anything.

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I am working in a multinational company, and my monthly salary pay structure is Basic + HRA (House Rent Allowance). HRA is set by the company as 40% of the basic salary, e.g. the Basic is KD 100 and the HRA (40%) is KD 40 so the total salary for the month is KD 140.

My question is that as per Kuwait Labor Law how should the overtime pay be calculated?, should the overtime pay be calculated on the basic salary only or on the gross salary (including HRA) in my case.

My company is using only the basic salary for the overtime pay calculation. Not taking into account the HRA for overtime calculation.

Please clarify with an example and reply as per Kuwait Labor Law.

Name withheld

Answer: Sometimes one is misled by translations of the Kuwait Labor Law, the Labor Law itself and interpretations of the “so-called experts” who know nothing of the law. Now, if one were to read Articles 62 to 68 of the Kuwait Labor Law in isolation one would likely be misled because everywhere it has been mentioned that the calculation of overtime should be based on the latest “remuneration”, which means the basic salary plus all the allowances received at regular intervals.

But the ground reality is totally different. Sometimes, one has to seek legal advice to get a clear picture of the law and in this case the advice, which can’t be contested, comes from the Legal Department of the Ministry of Social Affairs and Labor.

Before we go on, you have to remember that there is a difference between a salary that an employee receives as a “package” and salary which is broken up every month into basic salary and every other allowance.

Now, if a person were receiving a “package”, in which there was no breakdown of the various components, then the overtime calculation would be based on that package. But in case, the salary is broken down into various components, then one should look at the following for the overtime calculation.

According to the Legal Department of the Ministry of Social Affairs and Labor, the overtime pay of such employees should be calculated as follows:

a) 1.25 times the basic hourly rate for excess hours worked on ordinary days

b) 1.50 times the basic hourly rate for all hours worked on the weekly off days

c) Twice the basic hourly rate for all hours worked on public holidays From the above it is clear that the company is correct and the overtime pay should be calculated on basic salary.

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I have been on an Article 18 visa since 2010 in Kuwait. I’m a woman, recently married to a Filipino guy who is living in my country. I would like to ask if I can get a visit visa or dependent visa to bring him to Kuwait to live with me. My mother and brother are already in Kuwait, so I want him to be here also. My current salary on my work permit is KD 260/ month. Will they allow woman to bring her husband on a dependent visa? What is the salary bracket in this connection?

Name withheld

Answer: According to the Kuwait law, wives are not allowed to sponsor their husbands on dependent visas so the only thing you can do is get him to Kuwait – for a very short while – on a visit visa.

You won’t face any problems in getting the visit visa as long as you have a rental agreement which shows that you have your own place to live plus a work permit which shows you earning at least KD 250.

It doesn’t matter what you are earning. What matters is the figure mentioned on the work permit.

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I came to Kuwait in 2012 on a project visa. This project was finished in 2015 and we transferred to another project. For our new project our company got a new sponsor but due to the change in transfer rules our company was unable to transfer our visa to the new sponsor.

In March 2016, however, our visa got transferred (I don’t know under what circumstances) to a company file (called Joint Venture). I have an engineer’s visa. I want to know, can I get a transfer to a new government project. If yes then what is the minimum time required to make the next transfer.

Name withheld

Answer: We can’t give you a clear answer because you have not mentioned what sort of Joint Venture your company is involved in. We ask this question because Joint Ventures can be in the Free Trade Zone (where most of such ventures are taking place these days) or outside the FTZ.

This becomes very important because a very different set of rules is applicable in both these areas. We also need to know whether the Joint Venture (which involves a foreign partner) involves the government or a private sector firm as partner.

Here lies the main issue which will confirm whether you are on a local private firm’s sponsorship or still on a government project visa.

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