Observación (CEACR) - Adopción: 2015, Publicación: 105ª reunión CIT (2016)

Convenio sobre el trabajo forzoso, 1930 (núm. 29) - Kuwait (Ratificación : 1968)

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Observación

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The Committee notes the observations of the Confederation of Indonesia Prosperity Trade Union (KSBSI) and the Indonesia Migrant Worker Union (SBMI), received on 10 July 2015.

Articles 1(1) and 2(1) of the Convention. Freedom of domestic workers to terminate their employment. For a number of years, the Committee has been drawing the Government’s attention to the exclusion of migrant domestic workers from the protection of the Labour Code, and has requested the Government to take the necessary measures to adopt a protective framework of employment relations that is specifically tailored to the difficult circumstances faced by this category of workers. In this regard, the Committee previously noted the adoption of a certain number of decrees and ministerial decisions, including Decree Law No. 40/1992 and Ministerial Decision No. 617/1992 regulating the rules and procedures for obtaining licenses for the private recruitment agencies supplying domestic workers and similar workers, as well as Ministerial Decision No. 1182/2010, which defines the rights and obligations of each party in the recruitment contract (the agency, the employer, the employee).

The Committee notes that in their communications the KSBSI and the SBMI refer to a specific case of a migrant domestic worker who worked in Kuwait from 2003 until 2014, and who had been subject to forced labour practices, including physical abuse, harsh working conditions and passport confiscation. The KSBSI and the SBMI allege that more than 660,000 foreign domestic workers from Asia and Africa work in Kuwait. They generally migrate via recruitment agencies in their home countries that maintain relationships with agents in Kuwait. Most have agreed two-year contracts. The KSBSI and the SBMI also indicate that in 2009 embassies of labour-sending countries in Kuwait received more than 10,000 complaints from domestic workers about non-payment of wages, excessively long working hours without rest, and physical, sexual and psychological abuse. Many more cases of abuse probably remain unreported. Domestic workers have few avenues of redress. Kuwait’s labour law excludes domestic workers, while immigration laws prohibit them from leaving or changing jobs without their employer’s consent. Domestic workers who leave their job without their employer’s permission, even those fleeing abuse, may face immigration charges with criminal penalties, indefinite detention and deportation. Finally, the KSBSI and the SBMI emphasize that the major contributing factor to the vulnerability of domestic workers is Kuwait’s sponsorship system (kafala). The Aliens Residence Law of 1959, with its implementing regulations, remains the primary law establishing this system. According to the 1959 Law, sponsors decide whether a worker may change employer and can file paperwork with the immigration authorities to cancel a worker’s residence permit at any time.

The Committee notes the Government’s indication in its report that Law No. 68/2015 on employment of domestic workers has recently been adopted. The Committee duly notes that the Law provides for the respective obligations of the employer and the worker, particularly with regard to the model contract issued by the Ministry of the Interior in Arabic and English, hours of work, remuneration and rest time, as well as holidays. The Committee notes in particular that sections 12 and 22 of the Law expressly prohibit passport confiscation by the employer. It also notes that the contract between the employer and the domestic worker is concluded for a period of two years and can be renewed for a similar period, unless one of the two parties notifies the other at least two months before the end of the two-year contract. The Committee finally notes that domestic workers can file a complaint with the Domestic Labour Department and seek redress, for instance, for the non-payment of wages or for any other matter.

The Committee notes with concern the indications by the unions that migrant domestic workers are vulnerable to abusive practices and working conditions that may amount to the exaction of forced labour. While recognizing that Law No. 68/2015 on employment of domestic workers constitutes a positive step towards improving the protection of migrant domestic workers, the Committee urges the Government to take the necessary measures to ensure that it is effectively applied. The Committee requests the Government to provide information on the application in practice of Law No. 68/2015, including a copy of the model contract issued by the Ministry of the Interior, as well as data on the number of domestic workers who have filed complaints with the Domestic Labour Department and the outcome of such complaints. With regard to the right of domestic workers to freely terminate their employment, the Committee requests the Government to indicate the manner in which migrant domestic workers are appraised of the right to terminate their two-year employment contract, with a two-month notice period, and to change employer or leave the country.

Articles 1(1), 2(1) and 25. 1. Trafficking in persons. In its previous comments, the Committee requested the Government to indicate the measures taken or envisaged, in both law and practice, to prevent, suppress and punish trafficking in persons, including victim protection measures, as well as any intention to introduce penal provisions aimed specifically at the punishment of trafficking in persons. The Committee notes with interest the adoption of Law No. 91 of 2013 on trafficking in persons and smuggling of migrants, which aims to punish trafficking and related offences and provides for stringent penalties for offences related to trafficking in persons (15 years and a fine). The Committee requests the Government to provide information on the application in practice of the Law on trafficking, indicating the number of investigations and prosecutions carried out, and the penalties applied. The Committee also requests the Government to provide information on the measures taken to protect victims of trafficking.

2. Penal sanctions for the exaction of forced labour. In its earlier comments, the Committee observed that the national legislation examined previously provides only for pecuniary sanctions for the exaction of forced labour which should be punishable as a penal offence, with really adequate penalties. The Committee notes that the Government refers to several penal provisions, including: (i) sections 49 and 57 of Law No. 31 of 1970 amending the Penal Code; (ii) 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; and (iii) section 173 of the Penal Code, which provides for the imposition of penalties of imprisonment on anyone who threatens another person physically or damages his or her reputation or property with a view to forcing the victim to do something or to refrain from doing something. The Committee also notes that under section 185 of the Penal Code the enslavement, purchase or offering of a person is punishable by a term of five years of imprisonment and a fine. The Committee requests the Government to provide information on the application in practice of the above provisions of the Penal Code, indicating the number of investigations, convictions and the penalties applied.

The Committee is raising other matters in a request addressed directly to the Government.