Observación (CEACR) - Adopción: 2018, Publicación: 108ª reunión CIT (2019)

Convenio sobre la discriminación (empleo y ocupación), 1958 (núm. 111) - Kuwait (Ratificación : 1966)

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Article 1 of the Convention. Protection of workers against discrimination in employment and occupation. Legislation and practice. In its previous comment, the Committee recalled that constitutional provisions, while important, have generally not proven to be sufficient in order to address specific cases of discrimination in employment and occupation and that, in any case, article 29 of the Constitution does not cover all the grounds set out in Article 1(1)(a) of the Convention nor all forms of discrimination in employment and occupation. It urged the Government to take concrete steps to explicitly prohibit direct and indirect discrimination based on race, sex, colour, religion, political opinion, national extraction and social origin, with respect to all aspects of employment and occupation, and covering all workers. Recalling that addressing sexual harassment through criminal proceedings is normally not sufficient, it asked the Government to adopt specific legal provisions defining and prohibiting both quid pro quo and hostile environment sexual harassment in employment and occupation, and provisions addressing remedies and sanctions. The Committee notes that, in its reply, the Government refers once again to article 29 of the Constitution providing for equal rights without distinction on the basis of sex, origin, language or religion, as well as article 7 which provides that justice, liberty and equality are the pillars of society and that there is a firm bond of cooperation and mutual respect between citizens. The Government also indicates, once again, that the Criminal Code criminalizes sexual harassment in all its forms. The Committee notes that the Government, referring to article 70 of the Constitution, emphasises the fact that international treaties and Conventions have the force of law once they have been signed, ratified and published in the Official Gazette. They are therefore an integral part of the domestic legislation: all government bodies and institutions and all individuals are required to abide by their provisions and the courts must ensure that they are respected and protected. In this regard, the Committee recalls that constitutional clauses which expressly provide that international agreements and treaties prevail over national law, while important, do not exempt States from adopting national legislation to implement the principles laid down in the Convention. The provisions of the Convention, even where prevailing over national law, may not be sufficient in themselves to provide effective legal protection from discrimination to individual workers (see 2012 General Survey on the fundamental Conventions, paragraph 851). The Committee once again: (i) urges the Government to take concrete steps to explicitly prohibit direct and indirect discrimination based on race, sex, colour, religion, political opinion, national extraction and social origin, with respect to all aspects of employment and occupation, including recruitment, and covering all workers; (ii) asks the Government to adopt specific legal provisions defining and prohibiting both quid pro quo and hostile environment sexual harassment in employment and occupation, and providing for remedies and sanctions; and (iii) in the meantime, asks the Government to take the necessary steps to ensure that all workers are protected in practice against all forms of discrimination, including sexual harassment, in employment and occupation and to provide full information in this respect.

Migrant workers, including domestic workers. The Committee notes that Kuwait’s sponsorship system (kafala) – under which migrant workers’ legal status is tied to their employers who act as their sponsors for obtaining a visa – has not been abolished. This system, which denies workers the opportunity of obtaining alternative employment, exposes migrant workers to abuse and undermines their ability to have recourse to means of redress. The Committee notes that, on 31 March 2016, the Public Authority for Manpower of the Ministry of Social Affairs and Labour published Decree No. 378/2016 allowing migrant workers in the private sector to transfer their sponsorship to a new employer without their current employer’s consent after three years has elapsed since the date of issue of their work permit and provided that they give 90 days’ notice to their current employer. The Committee understands, however, that this amendment to the sponsorship system does not apply to domestic workers. It recalls that all migrant workers must be protected against discrimination based, at least, on race, colour, sex, religion, political opinion, national extraction or social origin, as indicated in Article 1(1)(a) of the Convention.

The Committee notes with interest the adoption of the Domestic Workers Act (Act No. 68 of 2015) which, inter alia: (i) prohibits recruitment agencies from charging domestic workers any fees, either direct or indirect (article 4); (ii) prohibits recruitment agencies from advertising, promoting or categorizing them in any humanly degrading manner (including according to faith, gender, colour or cost) (article 5); (iii) specifies the particulars that must be contained in the recruitment contract (to be provided in both Arabic and English) (article 18) and (iv) gives domestic workers the right to be paid on a monthly basis (articles 7 and 20), the right to a weekly day off, annual paid leave, a 12-hour working day with rest (article 22) and an end-of-service benefit of one month a year at the end of their contract (article 23). It also prohibits the employer from retaining the domestic worker’s personal identity document (unless the worker has agreed to this) (articles 12 and 22(4)) and from assigning the domestic worker any dangerous or humiliating work (article 10). It requires the employer to provide the domestic workers with food, clothing, medicine and medical treatment as well as suitable housing enabling decent living standards (articles 9 and 11). The Committee notes that, although the protection enjoyed by domestic workers under Act No. 68 is still not on par with the general labour law, it is a step towards addressing discrimination against domestic workers. The Committee notes, however, that under the Act domestic workers are not allowed to change employer without the consent of their current employer; that protection against discrimination and abuse, including sexual harassment, from employers is weak (specific sanctions are foreseen against recruitment agencies violating the provisions of the law, but not in cases where it is the employer who is violating the law); and that the Ministry of Interior must deport domestic workers considered as having “absconded” from their employer, even if they did so because of abuse from their employer (Article 51). In addition, the Committee notes that, in November 2017, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) expressed its concern about the legal gaps in the Domestic Workers Act regarding the effective protection of these workers from abuse, exploitation and violence, including: the lack of labour inspection mechanisms; weak penalties imposed on labour recruitment agencies for abusive practices; the tying of the immigration status of the domestic workers to one employer or sponsor, and the requirement for the Ministry of the Interior to deport an “absconding” worker; the absence of sanctions applied to employers for withholding the passports of domestic workers or for failing to provide adequate housing, food, medical expenses, daily breaks or weekly rest days; and the absence of a requirement for employers to be present in dispute resolution between employers and domestic workers, as well as the absence of complaint mechanisms. The CEDAW recommended, inter alia, that the Government continue its efforts to completely abolish the kafala (sponsorship) system (CEDAW/C/KWT/CO/5, 22 November 2017, paragraphs 36(e) and 37(f)). The Committee also notes the Government’s statement that Act No. 69 of 2015 concerning the establishment of a closed joint stock company for the recruitment and employment of domestic workers was promulgated and the Kuwait Home Helper Operating Company has now been established with the objective of avoiding the negative aspects of recruitment agencies for domestic workers. It further notes the Government’s indication that the Domestic Workers Department (DWD) within the Ministry of the Interior, which is responsible for reviewing complaints filed by domestic workers, has received numerous complaints which were resolved by amicable means. The Committee asks the Government to provide information on the application, in practice, of the Domestic Workers Act No. 68 of 2015, including on the gaps regarding the effective protection of domestic workers from abuse, exploitation and violence emphasised by the Committee as well as the CEDAW. It asks the Government to indicate if the Kuwait Home Helper Operating Company has completely replaced the pre existing recruitment agencies and to provide information on its functioning and, if available, a copy of the annual report on its activities. It requests that the Government continue to provide information on all steps taken or envisaged to review the sponsorship system and to ensure the full application of the Convention in respect of all migrant workers, as well as information, including statistics, on the results of the examination of complaints by the Domestic Workers Department.

Stateless persons or persons without nationality (Bidoons). The Committee notes that the Government attached to its report an information booklet from the Central Agency indicating that the estimated number of stateless persons or persons without nationality (Bidoons) –referred to by the Government as “illegal residents” – was approximately 100,000 in 2014. The Committee recalls that the Council of Ministers, by Resolution No. 1612 of 2010, adopted a road map to remedy this issue. The Committee notes the Government’s indication that the Central Agency, in cooperation with the Civil Service Commission, the Kuwait Chamber of Commerce and Industry and the Union of Cooperative Societies is doing its utmost to enable stateless persons to find employment in the public and private sectors as well as in self-employment. According to the Government, there are 2,571 public sector or cooperative sector employees belonging to this group. The Government emphasizes that the decision to establish the Central Agency shows its willingness to find a solution to this issue. The Committee notes, however, that the United Nations Committee on the Elimination of Racial Discrimination (CERD), in its concluding observations, remained deeply concerned by the situation of Bidoons, many of which have lived in Kuwait for generations but are deemed “illegal residents” by the authorities and recommended that the Government find a durable solution to the problem faced by Bidoons, including by considering naturalizing those who have lived in Kuwait for long periods and have a genuine and effective link to the State (CERD/C/KWT/CO/21-24, 19 September 2017, paragraph 27). The Committee requests the Government to provide information on the results of the implementation of the road map adopted by the Council of Ministers (Resolution No. 1612/2010) and to provide information on the measures taken to ensure that all stateless persons or residents without nationality (Bidoons) are protected against discrimination in employment and occupation, including in accessing employment, on the grounds set out in the Convention. The Committee asks the Government to provide statistical data on the number of Bidoons living in the country and on their employment status.

Article 2. National equality policy. The Committee notes the Government’s indication that a technical cooperation project was signed with the International Labour Office in November 2014 setting out a number of activities relating to equality issues and that, through the implementation of these activities, there would be discussions on the formulation of a national policy. The Committee is aware that a seminar on equality and non-discrimination issues was held in November/December 2016. However, the labour law review that had been foreseen in the technical assistance programme documents has not been carried out. Recalling that the primary obligation of ratifying States is to declare and pursue a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof, the Committee asks the Government to provide information on the progress made towards the development and implementation of a comprehensive national policy for the elimination of discrimination in employment and occupation with respect to all the grounds set out in the Convention, including measures to raise awareness on equality and non-discrimination issues.

Article 5. Special measures of protection or assistance. Work prohibited for women. The Committee notes the Government’s indication that Articles 22 and 23 of the Private Sector Labour Act (Act No. 6 of 2010) – which prohibit the employment of women at night (with some exceptions) and in work that is hazardous, arduous or harmful to health or violates public morals – aim to protect women in general, including pregnant women. In this regard, the Committee recalls that a major shift over time has occurred from a purely protective approach concerning the employment of women to one based on promoting genuine equality between men and women and eliminating discriminatory law and practice. It draws the Government’s attention to the distinction to be made between special measures to protect maternity, as envisaged in Article 5 of the Convention, and measures based on stereotypical perceptions of women’s capabilities and their role in society, which are contrary to the principle of equality of opportunity and treatment and constitute obstacles to the recruitment and employment of women. The provisions relating to the safety and health of workers should provide for a safe and healthy environment for both men and women workers, while taking account of gender differences with regard to specific risks to their health. Moreover, with a view to repealing discriminatory protective measures applicable to women’s employment, it may be necessary to examine what other measures, such as improved health protection of both men and women, adequate transportation and security, as well as social services, are necessary to ensure that women can access these types of employment on an equal footing with men (see 2012 General Survey, paragraphs 838–840). The Committee once again asks the Government to ensure that special measures for the protection of women are limited to that which is strictly necessary to protect maternity, and that these provisions do not impede access for women to employment and occupation. The Committee also invites the Government to consider the possibility of reviewing health and safety issues with a view to improving health protection for both men and women and adopting accompanying measures with respect to security and the availability of adequate transport and social services to enable women to access all types of employment on an equal footing with men. The Committee asks the Government to supply information on any measures adopted in this regard.

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