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Articles 1(1) and 2(1) of the Convention. Freedom of career military personnel to leave their service. In its earlier comments, the Committee requested the Government to describe the criteria applied in accepting or rejecting a resignation submitted by a person wishing to resign from the army in accordance with the requirements laid down by Law No. 32 of 1967 (sections 104 and 105). The Committee observed that, under the above provisions, an application to resign may be either accepted or refused, but neither section 104 nor 105 establishes the criteria used for deciding whether a resignation presented in compliance with these provisions will or will not be accepted.
The Committee notes that, regarding the criteria applied in accepting or rejecting a resignation, the Government indicates in the first place the public interest of the State, followed by the interest of the person submitting the resignation, in the light of the political and international conditions, as well as the security considerations of the region. The Government also states that the period for the acceptance of the resignation is needed for the finalization of the procedures for leaving the service and handing over any military custody that the person was in charge of. As regards the number of cases in which such resignations were refused and the grounds for refusal, the Government indicates that there have been no cases in which a resignation was refused.
Recalling that career members of the armed forces, who have voluntarily engaged in the armed forces, should not be deprived of the right to leave the service in peacetime within a reasonable period (either at specified intervals, or with previous notice), the Committee requests the Government to continue to provide, in its future reports, information on the application of sections 104 and 105 in practice, indicating the number of cases in which such resignations were refused and the grounds for refusal.
Articles 1(1) and 2(1) of the Convention. Freedom of domestic workers to terminate employment. The Committee notes the ILO technical assistance mission in February 2010, during which a tripartite workshop was held on report writing on international labour standards, and issues relating to the application of the Conventions were discussed, including the situation of foreign domestic workers. Referring to its earlier comments, in which the Committee expressed concern about the situation of domestic workers, the Committee notes that the new Labour Code (Law No. 6, 2010) excludes domestic workers from its scope (section 5). It notes, however, that the same section of the new Labour Code authorizes the competent minister to issue a decision concerning this category of workers specifying the rules governing the relationship between domestic workers and their employers. The Committee also notes Order No. 568 of 29 May 2005, issued by the Council of Ministers, supplied by the Government with its report, which provides for the establishment of a permanent committee for the regulation of the situation of migrant workers in the private sector, including domestic workers, as well as the information concerning the activities of this permanent committee. The Committee further notes sample copies of employment contracts concluded with domestic workers, in accordance with the model contract issued by the Ministry of Interior, communicated by the Government. Regarding the right of domestic workers to terminate employment, the Committee notes that, according to section 1 of Part V of the model contract, domestic workers can terminate employment by notifying their employer two months before the end of the contract. The Government also states, as regards a possibility for domestic workers to have recourse to courts, that these workers may initiate legal proceedings without any restrictions.
While noting this information, the Committee trusts that the Ministerial Decision specifying the rules governing the relationship between domestic workers and their employers, to which reference is made in the new Labour Code, will be issued in the near future, and that it will provide adequate protection for domestic workers as regards their freedom to terminate employment. The Committee asks the Government to communicate a copy of the Ministerial Decision, as soon as it is promulgated.
Articles 1(1), 2(1) and 25. Trafficking in persons. In its previous comments, the Committee requested the Government to indicate measures taken or envisaged, both in legislation and in practice, to prevent, suppress and punish trafficking in persons, including victim protection measures, as well as any intention to introduce penal provisions aiming specifically at the punishment of trafficking in persons. The Committee notes the Government’s indication in its report that a bill on combating trafficking in persons and the smuggling of migrants has been submitted to the Council of Ministers for its adoption before its referral to the Majlis El Ummah (Parliament). The Government indicates that the bill includes a definition of trafficking in persons and the provisions imposing penalties on perpetrators, as well as the provisions relating to the protection of victims of human trafficking. Furthermore, the bill provides for the setting up of a national committee for combating human trafficking, which will formulate policies and programmes in this field.
The Committee hopes that the bill on combating trafficking in persons will be passed in the near future and that the Government will provide a copy of the new anti-trafficking law, once it has been adopted. Please provide information on the activities of the national committee for combating human trafficking referred to above, in particular on the relevant policies and programmes, as well as the information on the application in practice of sections 138 and 173 of the Penal Code, to which the Government refers in its report in relation to the punishment of human trafficking.
Article 25. Penal sanctions for the illegal exaction of forced or compulsory labour. In its earlier comments, the Committee observed that the national legislation does not contain any specific provisions under which the illegal exaction of forced or compulsory labour is punishable as a penal offence, and invited the Government to take the necessary measures, for example by introducing a new provision to that effect in the legislation. The Government has referred in this regard to various penal provisions (such as sections 49 and 57 of Law No. 31 of 1970 on the amendment of the Penal Code, or section 121 of the Penal Code) prohibiting public officials or employees to force a worker to perform a job for the State or for any public body, as well as to section 173 of the Penal Code, which provides for the imposition of penalties on anyone who threatens another person physically or with damage to his reputation or property with a view to forcing the victim to do something or to refrain from doing something.
The Committee takes note of the Government’s view expressed in its report that the above penal provisions are sufficient to hinder a person from exacting labour from another person. The Government indicates, however, that the information on the application of these provisions in practice is not currently available.
The Committee recalls, referring to the explanations in paragraphs 135–140 of its 2007 General Survey on the eradication of forced labour that, in stipulating that the illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and that States must ensure that the penalties imposed by law are really adequate and strictly enforced, Article 25 provides a repressive component which ultimately plays a preventive role, since effective punishment of perpetrators encourages victims to lodge complaints and has a dissuasive effect. The Committee therefore trusts that the necessary measures will be taken (e.g. on the occasion of the possible future revision of the Penal Code) in order to give full effect to Article 25 of the Convention. Pending the adoption of such measures, the Committee again requests the Government to communicate information on the application of the above penal provisions in practice, supplying copies of the court decisions and indicating the penalties imposed, as soon as such information becomes available.
The Committee is raising other points in a request addressed directly to the Government.
Articles 1(1) and 2(1) of the Convention. Freedom of career military personnel to leave their service. Over a number of years, the Committee has been requesting the Government to supply details regarding the criteria applied in accepting or rejecting a resignation submitted by a person wishing to resign from the army in accordance with the requirements laid down by Law No. 32 of 1967 (sections 104 and 105). The Committee noted that the service is not automatically terminated upon delivery of a resignation which otherwise complies with the requirements of sections 104 and 105. It follows from the wording of the above sections that an application to resign may be either accepted or refused, but neither section 104 nor 105 establishes the criterion used for deciding whether a resignation presented in compliance with the conditions laid down in these provisions will or will not be accepted.
The Committee has noted the Government’s statement in the report that, before joining the army, a person should be well aware of his/her rights and obligations, including conditions and procedure of resignation. However, the Committee recalls that career members of the armed forces, who have voluntarily engaged in the armed forces, should not be deprived of the right to leave the service in peacetime within a reasonable period, either at specified intervals, or with previous notice (see, for example, the explanations provided in paragraphs 40, 46 and 96–97 of the Committee’s General Survey of 2007 on the eradication of forced labour). The Committee therefore hopes that the necessary measures will be taken with a view to amending the above sections 104 and 105, so as to bring them into conformity with the Convention. Pending such amendment, the Committee requests the Government to provide information on the application of sections 104 and 105 in practice, indicating the number of cases in which such resignations were refused and the grounds for refusal, as well as the criteria applied in accepting or rejecting a resignation presented in conformity with these sections.
Articles 1(1) and 2(1) of the Convention. Freedom of domestic workers to terminate employment. In its earlier comments, the Committee expressed concern about the conditions under which domestic servants can leave their employment and their possibility to have recourse to courts if necessary. The Committee noted that the Labour Code currently in force excludes domestic workers. It also noted the Government’s indications that the new draft Labour Code would cover this category of workers and that, under section 5 of the draft Labour Code, the competent minister would make an order specifying the rules governing the relationship between domestic servants and their employers. Having noted that the new Labour Code has not yet been adopted, the Committee requested the Government to supply a copy of Order No. 362, of 4 April 2004, issued by the Council of Ministers, which provides for the establishment of a permanent committee for the regulation of the situation of migrant workers in the private sector, including domestic workers, under the chairmanship of the Minister of Social Affairs and Labour.
The Committee trusts that the new Labour Code, once adopted, will provide adequate protection for domestic workers as regards their freedom to terminate employment, and that the Government will communicate a copy of the new Code, as soon as it is adopted. The Committee again requests the Government to communicate a copy of the Council of Minister’s Order No. 362, which, as the Government indicated, was attached to the report, but has not been received in the ILO. Please also provide information on the activities of the permanent committee on migrant workers referred to above, as well as sample copies of contracts of employment concluded with domestic workers in accordance with the model contract issued by the Ministry of Interior.
Articles 1(1), 2(1) and 25. Trafficking in persons. The Committee previously noted the Government’s indication in its report that the victims of forced labour have the right to turn to the authorities, though without being allowed to stay in the country during the civil action unless their legal residence allows them to do so. The Committee asked the Government to indicate the measures taken or envisaged to allow the victims of trafficking to turn to the authorities and to stay in the country at least for the duration of court proceedings.
In its latest report, the Government merely states that victims of trafficking, as any other persons suffering from unjust acts, have the right to turn to the authorities and to courts to defend their rights. The Committee refers in this connection to the explanations provided in paragraphs 73–85 of its 2007 General Survey on the eradication of forced labour, where it observed that victims of trafficking are often perceived by the authorities as illegal aliens and that they should be granted permission to stay in the country to defend their rights and should be efficiently protected from reprisals if they are willing to testify; the protection of victims of trafficking may also contribute to law enforcement and to the effective punishment of perpetrators.
The Committee hopes that the Government will indicate, in its next report, measures taken or envisaged both in legislation and in practice, to prevent, suppress and punish trafficking in persons, including victim protection measures, such as, for example, protection of victims willing to testify from reprisals by the exploiters or any measures to encourage the victims to turn to the authorities and to stay in the country at least for the duration of court proceedings. Please also indicate whether there is an intention to introduce penal provisions aiming specifically at the punishment of trafficking in persons.
Article 25. Penal sanctions for the illegal exaction of forced or compulsory labour. The Committee previously noted that the legislation does not contain any specific provision under which the illegal exaction of forced or compulsory labour is punishable as a penal offence, and invited the Government to take the necessary measures, for example by introducing a new provision to that effect in the legislation. The Committee noted that the Government had referred in its reports to various penal provisions (such as sections 49 and 57 of Law No. 31 of 1970 on the amendment of the Penal Code, or section 121 of the Penal Code) prohibiting public officials or employees to force a worker to perform a job for the State or for any public body, as well as to section 173 of the Penal Code, which provides for the imposition of penalties on anyone who threatens another person physically or with damage to his reputation or property with a view to forcing the victim to do something or to refrain from doing something.
The Committee pointed out that the abovementioned provisions do not appear to be sufficient to give effect to Article 25 of the Convention which stipulates that “the illegal exaction of forced or compulsory labour shall be punishable as a penal offence”, and that “it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and strictly enforced”.
The Committee expresses the firm hope that the Government will take the necessary measures (e.g. through the adoption of the new Labour Code or through the amendment of the Penal Code) in order to give full effect to this Article of the Convention. Pending the adoption of such measures, the Committee asks the Government to provide information on the application of the above penal provisions in practice, supplying copies of the court decisions and indicating the penalties imposed.
The Committee is also addressing a request on certain other points directly to the Government.
Freedom of career military personnel to leave their service. Over a number of years, the Committee has been requesting the Government to supply details regarding the criteria applied in accepting or rejecting a resignation submitted by a person wishing to resign from the army in accordance with the requirements laid down by Law No. 32 of 1967 (sections 104 and 105). The Committee noted that it is the obligation of the person seeking to resign to continue service in the armed forces until the resignation is accepted, which means that the service is not automatically terminated upon delivery of a resignation which otherwise complies with the requirements of sections 104 and 105. It noted that neither section 104 nor 105 establishes the criterion used for deciding whether a resignation presented in compliance with the conditions laid down in these provisions will or will not be accepted.
As the Committee repeatedly pointed out, referring also to paragraphs 33 and 72 of its General Survey of 1979 on the abolition of forced labour, career members of the armed forces, who have voluntarily engaged in the armed forces, should not be deprived of the right to leave the service in peacetime within a reasonable period, either at specified intervals, or with previous notice. Having noted the Government’s indication in the report that there have been no new developments on this subject, the Committee requests the Government once again to indicate clearly the criteria applied in accepting or rejecting a resignation presented in conformity with sections 104 and 105 of the abovementioned Law, as well as the number of cases in which such resignations were refused and the grounds for refusal.
Articles 1(1) and 2(1) of the Convention
1. Freedom of domestic workers to terminate employment. In its earlier comments, the Committee expressed concern about the conditions under which domestic servants can leave their employment and their possibility to have recourse to courts if necessary. The Committee noted that the Labour Code currently in force excludes domestic workers. It also noted the Government’s indications that the new draft Labour Code would cover this category of workers and, pursuant to section 5 of the draft Labour Code, the competent Minister would make an order specifying the rules governing the relationship between domestic servants and their employers. Having noted that the new Labour Code has not yet been adopted, the Committee requested the Government to supply a copy of any ministerial order or other legislative text specifying the rules governing the relationship between domestic servants and their employers.
The Committee notes from the Government’s report that the Council of Ministers issued Order No. 362, of 4 April 2004, concerning the establishment of a permanent committee for the regulation of the situation of migrant workers in the private sector, including domestic workers, under the chairmanship of the Minister of Social Affairs and Labour. It also notes a model contract for migrant domestic workers and similar categories, prepared by the Ministry of Interior, which contains provisions governing their employment, including a provision concerning termination of an employment contract by either party, subject to prior notice.
While noting this information with interest, the Committee reiterates the firm hope that the new Labour Code, once adopted, will provide adequate protection for domestic workers as regards their freedom to terminate employment, and that the Government will communicate a copy of the new Code, as soon as it is adopted. The Committee would appreciate it if, pending the adoption of these provisions, the Government would provide information on the activities of the permanent committee on migrant workers referred to above, as well as sample copies of contracts of employment concluded with domestic workers in accordance with the model contract issued by the Ministry of Interior. Please also communicate a copy of the Council of Minister’s Order No. 362, which was referred to by the Government as annexed to the report, but has not been received in the ILO.
2. Trafficking in persons for the purpose of exploitation. In its earlier comments, the Committee noted the Government’s statement in its reply to the Committee’s 2000 general observation on the subject that the victims of forced labour have the right to refer to the authorities, though without being allowed to stay in the country during the civil action unless their legal residence allows them to do so. The Committee asked the Government to indicate the measures taken or envisaged to allow the victims of forced labour to stay in the country at least for the duration of court proceedings.
The Committee notes the Government’s indication in the report that section 22 of Act No. 17 of 1959, which governs foreigners’ residence, authorizes foreigners on whom a repatriation order has been issued in accordance with the law, to ask for a grace period not exceeding three months, subject to submitting a guarantee. The Government adds that a foreign worker who has received an order to leave the country in accordance with the law, but who has a civil case before the court, is authorized to mandate a lawyer or any other person to represent him in the civil case.
While noting this information, the Committee hopes that the Government will indicate any other measures taken or contemplated to encourage the victims to turn to the authorities, such as, e.g., protection of victims willing to testify from reprisals by the exploiters. Please also indicate whether there is an intention to introduce penal provisions aiming specifically at the punishment of trafficking in persons for the purpose of exploitation.
Article 25. Penal sanctions for the illegal exaction of forced or compulsory labour. In its earlier comments, the Committee noted that the legislation does not contain any specific provision under which the illegal exaction of forced or compulsory labour is punishable as a penal offence, and invited the Government to take the necessary measures, for example by introducing a new provision to that effect in the legislation. The Committee noted that the Government had referred in its reports to various penal provisions (such as sections 49 and 57 of Law No. 31 of 1970 on the amendment of the Penal Code, or section 121 of the Penal Code) prohibiting public officials or employees to force a worker to perform a job for the State or for any public body, as well as to section 173 of the Penal Code, which provides for the imposition of penalties on anyone who threatens another person physically or with damage to his reputation or property with a view to forcing the victim to do something or to refrain from doing something.
The Committee pointed out that the abovementioned provisions do not appear to be sufficient to give effect to Article 25 of the Convention which stipulates that "the illegal exaction of forced or compulsory labour shall be punishable as a penal offence", and that "it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and strictly enforced".
The Committee reiterates its hope that the Government will take the necessary measures in order to give full effect to this Article of the Convention. Pending the adoption of such measures, the Committee asks the Government to provide information on the application of the above penal provisions in practice, supplying copies of the court decisions and indicating the penalties imposed.
Referring to paragraphs 33 and 72 of its General Survey 1979 of on the abolition of forced labour, the Committee wishes to point out once again that career members of the armed forces, who have voluntarily engaged in the armed forces, should not be deprived of the right to leave the service in peacetime within a reasonable period, either at specified intervals, or with previous notice. Having noted that the Government’s report contains no new information on the subject, the Committee again requests the Government to indicated clearly the criteria applied in accepting or rejecting a resignation presented in conformity with sections 104 and 105 of the abovementioned Law, as well as the number of cases in which such resignations were refused and the grounds for refusal.
The Committee has noted the information provided by the Government in reply to its earlier comments.
1. Articles 1(1) and 2(1) of the Convention. Domestic workers and similar categories. In its earlier comments, the Committee expressed concern about the conditions under which domestic servants can freely leave their employment and their possibility to have recourse to courts if necessary.
The Committee previously noted that the Labour Code currently in force excludes domestic workers but that, according to the Government, the new draft Labour Code would cover this category of workers and, pursuant to section 5 of the draft Labour Code, the competent minister would make an order specifying the rules governing the relationship between domestic servants and their employers. Having noted the Government’s indication in its 2003 report that the new Labour Code has not yet been adopted and that no ministerial order on the subject has been issued, the Committee expresses the firm hope that the new Labour Code will provide adequate protection for these workers as regards their freedom to terminate employment, and that the Government will communicate a copy of the new Code, as soon as it is adopted, as well as any ministerial order or any other legislative text specifying the rules governing the relationship between domestic servants and their employers.
Pending the adoption of these provisions, the Committee asks the Government to continue to provide information on any judicial procedures relating to the freedom of domestic workers to terminate employment.
2. Article 25. In its earlier comments, the Committee noted that the legislation does not contain any specific provision under which the illegal exaction of forced or compulsory labour is punishable as a penal offence, and invited the Government to take the necessary measures, for example, by introducing a new provision to that effect in the legislation. The Committee has noted that the Government referred in its reports to various penal provisions (such as sections 49 and 57 of Act No. 31 of 1970 on the amendment of the Penal Code, or section 121 of the Penal Code) prohibiting public officials or employees from forcing a worker to perform a job for the State or for any public body, as well as to section 173 of the Penal Code, which provides for the imposition of penalties on anyone who threatens another person physically or with damage to his reputation or property with a view to forcing the victim to do something or to refrain from doing something.
While noting these indications, the Committee wishes to point out once again that the abovementioned provisions do not appear to be sufficient to give effect to this Article of the Convention which stipulates that "the illegal exaction of forced or compulsory labour shall be punishable as a penal offence", and that "it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and strictly enforced".
The Committee hopes that the Government will take the necessary measures (e.g. through the adoption of the new Labour Code) in order to give full effect to this Article of the Convention. Pending the adoption of such measures, it asks the Government to provide information on the application of these penal provisions in practice, supplying copies of the court decisions and indicating the penalties imposed.
3. Measures to prevent, suppress and punish trafficking in persons for the purpose of exploitation. The Committee previously noted the Government’s statement in its reply to the Committee’s 2000 general observation on the subject that the victims of forced labour have the right to refer to the authorities, though without being allowed to stay in the country during the civil action unless their legal residence allows them to do so. The Committee asked the Government to indicate the measures taken or envisaged to allow the victims of forced labour to stay in the country at least for the duration of court proceedings.
Having noted from the Government’s report that no such measures have been taken, the Committee asks the Government to indicate any other measures taken or contemplated to encourage the victims to turn to the authorities, such as, for example, protection of victims willing to testify from reprisals by the exploiters. Please indicate whether there is an intention to introduce penal provisions aiming specifically at the punishment of trafficking in persons for the purpose of exploitation.
The Committee is also addressing a request directly to the Government on certain other points.
Also referring to its observation, the Committee requests the Government to provide information on the following point:
Resignation for career military personnel. In its previous comments, the Committee had observed that the Government had not indicated what criteria would apply to the acceptance or rejection of a resignation presented in conformity with Law No. 32 of 1967 (sections 104 and 105). The Committee had stressed that career military personnel who have voluntarily engaged in the armed forces should have the right to leave the service in peacetime within a reasonable period, either at specified intervals or with previous notice (see General Survey of 1979 on the abolition of forced labour, paragraphs 33 and 72). Having received no information in this connection, the Committee repeats its previous request on this point.
The Committee notes the Government’s reports. In its previous comments, it noted that a draft Labour Code was being prepared and that a copy thereof would be provided by the Government as soon as adopted by the competent authority. The Committee would appreciate receiving information in this connection.
1. Article 2(1) of the Convention. Domestic workers and similar categories. The Committee refers to its earlier comments concerning the conditions under which domestic servants can leave their employment (in particular their freedom to terminate employment) and their possibility to have recourse to courts if necessary.
The Committee noted that the contract concluded between the employer and the domestic servant is subject to the provisions of civil law and that conflicts are settled by civil courts. It notes from the Government’s 2000 report the information concerning the establishment of an independent administration at the Ministry of Interior to which is entrusted the supervision of domestic service agencies. The latter are required to pay a deposit worth 5,000 Kuwaiti dinars at one of the local banks in the Ministry’s account for the repatriation of a domestic worker in specific cases instead of him/her assuming the travel costs.
The Committee had previously asked the Government to indicate whether it was possible to derogate from the model contract attached to Ordinance No. 617 of 1992 on domestic service agencies. In its reply, the Government indicates that nothing prevents either party from amending the terms of the contract if there were more advantageous terms for the domestic worker. The Committee again asks the Government to supply sample copies of such contracts.
The Committee had also asked the Government to indicate whether the procedures before the civil courts were ordinary procedures or if there existed simplified procedures and to give examples of cases brought to the civil courts. It notes the Government’s indication in its 2000 report that, in the private sector, it is better to resort to civil courts rather than to apply the Labour Code provisions as the former are competent in examining conflicts relating to the rights of domestic workers. The Government also indicates that the Ministry of Justice has provided a sufficient number of officers who are responsible for drafting proceedings to be instituted by plaintiffs, at no cost. The Committee again asks the Government to give examples of cases brought to the civil courts.
The Committee noted in its previous comments that the Labour Code currently in force excludes domestic workers and that, pursuant to section 5 of the draft Labour Code, the competent Minister would make an order specifying the rules governing the relationship between domestic servants and employees regarded as such by their employers. It had asked the Government to provide any ministerial order or any other legislative text to specify the rules governing the relationship between domestic workers and their employers. Having received no information in this connection, the Committee repeats its previous request on this point.
2. Article 25. The Committee had noted that the legislation does not contain any specific provision under which the illegal exaction of forced or compulsory labour is punishable as a penal offence, and invited the Government to take the necessary measures, for example by introducing a new provision to that effect in the legislation, and to provide information on any measures taken. The Committee notes that, in its latest report, the Government refers to section 49 of Law No. 31 of 1970 amending a few provisions of the Penal Code. The Committee also notes that, according to the Government’s report, the abovementioned section provides that "any public official, employee, or worker employing by force workers in work for the State or for any public body, or retains part or the whole of their wages without justification shall be punishable by imprisonment for a period not exceeding three years, and to a maximum fine of 225 dinars or by either of these two penalties". The Committee asks the Government to provide a copy of the abovementioned Law and to indicate whether similar provisions exist in the private sector. In case such provisions do not exist, the Committee requests the Government to provide information on the measures taken to introduce a new provision to that effect in its legislation.
3. Reply to the general observation of 2000. The Committee notes that in reply to its general observation made in 2000 respecting the measures taken or contemplated to prevent, suppress and punish trafficking in persons for the purpose of exploitation, the Government refers to the provisions of the Labour Code and the Penal Code that prohibit and punish the use of forced or compulsory labour. It also notes the Government’s statement that the victims of forced labour have the right to refer to the authorities, though without them being allowed to stay in the country during the civil action unless their legal residence allows them to do so. The Committee asks the Government to indicate the measures it intends to take, if any, to allow the victims of forced labour to stay in the country at least for the duration of court proceedings.
The Committee also addresses a direct request to the Government on another point.
The Committee notes from the Government's report that a tripartite committee has been established and that it reviewed the draft Labour Code and introduced amendments to take into account the comments of the Committee of Experts and further promulgated ministerial orders to make the legislation compatible with the provisions of Conventions.
1. Article 2(1) of the Convention. Domestic workers and similar categories. The Committee had already noted the measures taken in order to protect these workers in the course of their recruitment by the domestic service agencies. The Committee notes from the Government's report that the contract concluded between the employer and the domestic servant is subject to the provisions of civil law and that conflicts are settled by civil courts.
The Committee asks the Government to indicate in its next report whether it is possible to derogate from the model contract, and to provide examples of such contracts. It also asks the Government to indicate whether the procedures before the civil courts are ordinary procedures or if there exist simplified procedures and to give examples of cases brought to the civil courts.
The Committee further notes that the Labour Code currently in force excludes domestic workers and that, pursuant to section 5 of the draft Labour Code, the competent minister will make an order specifying the rules governing the relationship between domestic servants and employees regarded as such by their employers.
The Committee takes due note of the statement in the report that a copy of the Labour Code will be provided as soon as it is adopted by the competent authority. It would also ask the Government to provide any ministerial order or any other legislative text to specify the rules governing the relationship between domestic workers and their employers.
2. Article 25. Further to its previous comments, the Committee notes the explanations in the report. The Committee observes that the Constitution prohibits forced labour (article 42), and an employer is prohibited from forcing a worker to do any work or task not provided for in the contract (Ministerial Order No. 105 of 1994). The Penal Code provides for penalties in case of threats to a person with a view to forcing that person to do something, although the legislation does not contain any specific provision under which the illegal exaction of forced or compulsory labour is punishable as a penal offence. It therefore invites the Government to take the necessary measures, for example by introducing a new provision to that effect in its legislation, and to provide information on any measures taken.
3. Resignation for career military personnel. While noting the information provided in the report, the Committee observes that the Government has not indicated what criteria would apply to the acceptance or rejection of a resignation presented in conformity with Law No. 32 of 1967 (sections 104 and 105). The Committee again recalls that career military personnel who have voluntarily engaged in the armed forces should have the right to leave the service in peacetime within a reasonable period, either at specified intervals or with previous notice (General Survey of 1979 on the abolition of forced labour, paragraphs 33 and 72). The Committee would again ask the Government to indicate what criteria would be applied to the rejection of a resignation presented in conformity with the law.
The Committee has noted the information provided by the Government in reply to its earlier comments. It has noted with interest the establishment, by Ministerial Order No. 114 of 1996, of a committee to study labour standards and Conventions, which shall, inter alia, study and propose labour standards in the light of international labour Conventions and Recommendations adopted by the International Labour Conference.
1. Article 25 of the Convention. In its earlier comments the Committee noted the Government's statement that there does not exist any form of forced or compulsory labour in the country. It noted that the Constitution prohibits forced labour (article 42), that the labour legislation is based on the principle of the agreement of the parties and that Law No. 38 of 1964 respecting employment in the private sector does not deal with forced labour.
The Committee has noted the adoption of Ministerial Order No. 105 of 1994, which prohibits private sector employers from utilizing any method to force employees to work or undertake tasks which fall outside their contract duties (section 1, clause 1). The Government refers in its latest report received in November 1996 to section 49 of Act No. 31 of 1970 to amend certain provisions of Act No. 16 of 1960, which prohibits public officials or employees to force a worker to perform a job for the State or for a public body and provides for punishment of imprisonment or a fine in case of violation of that prohibition. The Committee has also noted the Government's indication in its latest report that section 173 of the Penal Code provides for the imposition of penalties on anyone who threatens another person physically or with damage to his reputation or property with a view to forcing the victim to do something or to refrain from doing something.
While noting these indications, the Committee wishes to point out once again that the above-mentioned provisions do not appear to be sufficient to give effect to this Article of the Convention which stipulates that "the illegal exaction of forced or compulsory labour shall be punishable as a penal offence", and that "it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and strictly enforced".
The Committee hopes that the Government will take the necessary measures (e.g. through the committee to study labour standards and Conventions referred to above) in order to give full effect to this Article of the Convention. It asks the Government to provide, in its next report, information on any progress made in this regard.
2. In its earlier comments the Committee noted Ordinance No. 617 of 1992 on domestic service agencies and the model contract attached to the Ordinance. It noted that domestic workers and similar categories are excluded from the scope of Law No. 38 of 1964 respecting employment in the private sector. The Committee requested the Government to indicate how persons in domestic service are protected and in particular under what conditions they can leave their employment and to what courts they may have recourse if necessary.
The Committee has noted the Government's indications in its report of 1993 concerning the protection of domestic workers in the course of their recruitment by the domestic service agencies. It has noted that, in accordance with Legislative Decree No. 40 of 1992, such agencies must be licensed by the Ministry of Internal Affairs and a special inspectorate shall be set up to supervise their operations. The Government has also indicated that the new draft Labour Code covers this category of workers.
However, in the absence of the indications concerning the conditions under which domestic servants can leave their employment and concerning their possibilities to have recourse to courts if necessary, the Committee reiterates its request to the Government for such information. It hopes that the new Labour Code will provide adequate protection for these workers as regards their freedom to terminate employment, and asks the Government to supply a copy of the new Code as soon as it is adopted.
3. In its earlier comments the Committee asked the Government to supply details regarding the criteria applied in accepting or rejecting a resignation submitted by a person wishing to resign from the army in accordance with the requirements laid down by Law No. 32 of 1967 (sections 98, 99, 104 and 105). The Committee noted that it is the obligation of the person seeking to resign to continue service in the armed forces until the resignation is accepted, which means that the service is not automatically terminated upon delivery of a resignation which otherwise complies with the requirements of sections 104 and 105. It noted that neither section 104 nor 105 establishes the criterion used for deciding whether a resignation presented in compliance with the conditions laid down in these provisions will or will not be accepted.
With reference to paragraphs 33 and 72 of its 1979 General Survey on the abolition of forced labour, the Committee wishes to point out once again that career members of the armed forces, who have voluntarily engaged in the armed forces, should not be deprived of the right to leave the service in peacetime within a reasonable period, either at specified intervals, or with previous notice. While noting the Government's statement in its 1993 report that it is possible for all members of the armed forces to resign from the army, subject to some limited exceptional cases, the Committee again requests the Government to indicate clearly the criteria applied in accepting or rejecting a resignation presented in conformity with sections 104 and 105 of the above-mentioned law, as well as the number of cases in which such resignations were refused.
The Committee notes the Government's reports.
1. It notes the Government's statement that there does not exist any form of forced or compulsory labour in the country.
It notes that, according to the Government, the Constitution prohibits forced labour, that the labour legislation is based on the principle of the agreement of the parties and that Law No. 38 of 1964 respecting employment in the private sector does not deal with forced labour.
The Committee wishes to point out in this respect that the Convention explicitly requires that the illegal exaction of forced or compulsory labour shall be punishable as a penal offence. An overall prohibition which makes forced labour illegal, or unconstitutional, does not appear to be sufficient to satisfy the requirements of Article 25 of the Convention.
The Committee requests the Government to indicate the measures that it envisages taking to give full effect to this provision.
The Committee notes Ordinance No. 617 of 1992 on domestic service agencies, and in particular the clauses of the model contract. It notes that domestic workers and similar categories are excluded from the scope of Law No. 38 respecting employment in the private sector.
The Committee considers that, in certain cases, even when there is a general prohibition of forced or compulsory labour, employers may find themselves in a situation in which they exercise excessive control over workers, and in particular over foreign workers, especially those which are not covered by the labour legislation, such as domestic workers.
In so far as this category of persons may be indirectly obliged to work under conditions which are not comparable with a free employment relationship, the Committee requests the Government to indicate how persons in domestic service are protected.
With reference to Ordinance No. 617, referred to above, it also requests the Government to indicate the nature of the model contract attached to the Ordinance, the conditions under which persons in domestic service can leave their employment, and the courts to which they may have recourse if necessary.
2. Further to its direct request of 1990, the Committee recalls that it made comments on the conditions under which officers may resign from the army. The Committee considered that neither statutory provisions nor administrative practice may be invoked to deprive career members of the armed forces, who have voluntarily engaged in the armed forces, from the right to leave the service in peacetime, either at specified intervals, or with previous notice, subject to conditions which may normally be required to ensure continuity of service.
The Committee requests the Government to supply information on developments in the situation in this respect.
In several previous direct requests, the Committee asked the Government to supply details regarding the criteria applied in accepting or rejecting a resignation submitted by a person wishing to resign from the army in accordance with the requirements under Law No. 32 of 1967. Sections 98 and 99 of the Law provide that the service of an officer (or an under-officer or a simple soldier) is terminated, inter alia, if the resignation is accepted. Section 104 stipulates that to be valid a resignation must be in writing and without condition. Section 104 further indicates that the service of the person resigning is terminated only by the decision to accept the resignation and that a resignation from the army may not be presented during wartime, a period of martial law or force majeure. Section 105 provides the same while the person seeking resignation is being investigated or prosecuted before a military tribunal until a definitive sentence is pronounced by the tribunal. It is the obligation of the person seeking to resign to continue service in the armed forces until the resignation is accepted, that is the service is not automatically terminated upon delivery of a resignation which otherwise complies with the requirements of sections 104 and 105. Neither section 104 nor 105 establishes the criterion used for deciding whether a resignation presented in compliance with the conditions laid down in these provisions will or will not be accepted.
The Government indicates in its most recent report that the armed forces are divided into two categories: one composed of persons serving compulsory military service to which the provisions of the Convention do not apply, the other composed of volunteers who are admitted into the army. As regards the second category, the Government indicates that persons volunteer for service of their own free will and that the army obliges no one to volunteer for service; on the contrary, from those persons who volunteer the army chooses, according to its established standards, those who are inducted. Accordingly, inductees are fully aware of legislative provisions governing their service. Thus, in the Government's opinion, as a practical matter forced labour is all the more likely not to exist.
As concerns the question of resignation and the absence in law of criteria which would permit a request for resignation to be considered accepted at the expiration of a fixed period of time, the Government makes the following points. First, the absence in Kuwaiti law of a fixed time period at the end of which a resignation is considered accepted or refused is not unique to this country's armed forces; for the most part, in the Government's opinion, armed forces throughout the world apply this system, consistent with rules of military control, dependence, discipline and precision. Second, section 104 stipulates that a resignation must be made in writing and without condition; these requirements are imposed so that a resignation is presented only after due reflection and as a result of free choice, in conformity with section 98, paragraph 4 and section 99, paragraph 4 of Law No. 32 of 1967. The resignation will be refused for the reasons given in section 105 as well as in cases provided for under Article 2, paragraph 2 of the Convention. Third, the Government indicates that in practice all requests for resignation which conform to the formalities fixed in law are accepted and only those which fall within the exceptions established by law or "greater national interest" are refused.
The Committee takes due note of the Government's indications. The Committee also notes that, although requested, no specific details regarding the number of cases in which resignations from the armed forces were not accepted otherwise than during time of war or pending the person's legal prosecution have been provided, that is, statistical data with respect to the number of resignations conforming to formal requirements received, the number granted and the number refused, including the reasons for refusal. The Committee must reiterate that while the right of an individual to terminate employment may be limited by a government during periods of emergency within the meaning of Article 2, paragraph 2(d), of the Convention, in other circumstances, the effect of statutory provisions preventing termination of employment by giving notice of reasonable length is to turn a contractual relationship based on the will of the parties into service by compulsion of law, and is thus incompatible with the Convention. While this principle does not apply to provisions relating to compulsory military service, they do apply to career military service; and neither statutory provisions nor administrative practice may be invoked to deprive persons who have voluntarily entered into an engagement of the right to leave the service in peacetime within a reasonable period, either at specified intervals, or with previous notice, subject to the conditions which may normally be required to ensure the continuity of the service. Accordingly, the Committee again requests the Government to indicate the details and number of cases in which resignations presented in conformity with sections 104 and 105 of Law No. 32 of 1967 were turned down. Additionally, the Committee asks the Government to provide information concerning the interpretation given in practice to "greater national interest" as a reason for refusing a resignation request.