Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Articles 1, 2 and 3 of the Convention. The Committee recalls its previous observation noting the discussion that took place in the Conference Committee on the Application of Standards in June 2009, and its resulting conclusions, and which addressed the following issues: the absence of effective measures to ensure, in law and in practice, protection against discrimination in employment and occupation and the absence of measures addressing sexual harassment, protective measures for women unrelated to maternity protection, practical barriers to women’s access to particular occupations, and the need to ensure effective protection of migrant workers, in particular domestic workers, against discrimination on the grounds set out in the Convention. The observation also addressed the need for proactive measures in the context of a national equality policy, a component of which would be the revision of the Labour Code. 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 Convention were discussed. The Committee notes in this regard the Government’s acceptance of further ILO technical assistance with a view to more effectively addressing issues relating to the Convention.  

Legislative development. Prohibition of discrimination. The Committee recalls the Government’s express commitment to address effectively discrimination in the new Labour Law, and notes the entry into force of the New Private Sector Labour Law of Kuwait No. 6 of 2010, which applies to workers in the private sector, including foreign workers. While noting that important progress has been made with regard to terms and conditions of employment of workers, the Committee also notes the continued absence in the new legislation of provisions expressly prohibiting direct and indirect discrimination on the basis of all the grounds listed in Article 1(1)(a) of the Convention with respect to all the areas of employment and occupation, and of provisions prohibiting both quid pro quo and hostile environment sexual harassment, along with effective remedies. Law No. 6 of 2010 also continues to include protective measures for women which appear not to be strictly limited to maternity: section 22 prohibits employment of women at night, with some exceptions; section 23 prohibits employment of women in dangerous, hard or harmful to health trades or works, and “such jobs which are violating their morals and based on the utilization of their femininity in a manner which is not in line with the public morals”, and in institutions which provide services exclusively to men. The Committee further notes that Law No. 6 of 2010 continues to exclude domestic workers from its scope, and authorizes the competent minister to issue a decision specifying the rules governing the relationship between domestic workers and their employers (section 5). While welcoming the progress made with respect to the protection of workers’ rights in the private sector generally, the Committee urges the Government to take further steps to prohibit explicitly direct and indirect discrimination based on race, sex, colour, religion, national extraction, political opinion and social origin, with respect to all aspects of employment and occupation, covering all workers, and to adopt specific legislative provisions on both quid pro quo and hostile environment sexual harassment. The Government is also requested to provide information on any measures taken to prevent sexual harassment through practical and promotional means at the workplace. The Committee further requests the Government to ensure that the ministerial decision specifying the occupations and establishments regarding which women’s employment is prohibited pursuant to section 23 of Law No. 6 of 2010, will not reinforce discrimination and stereotypes of women’s abilities and role and will be limited to protecting maternity. The Government is encouraged to review sections 22 and 23 of Law No. 6 of 2010 with a view to bringing them into conformity with the Convention.

Access of women to particular occupations. The Committee recalls its concerns regarding the practical and legal obstacles to women’s access to a number of posts and occupations under the Government’s control, including due to stereotyped assumptions regarding what is “suitable to their nature”, and the need to take proactive measures to address barriers to their access to education and training opportunities and to certain posts and careers, including in the judiciary. The Committee notes from the Government’s report that 50 female students graduated from the Institute for Police Officers, including 15 officers, 15 corporals and 20 sergeants, and that 85 male officers graduated at the second lieutenant grade. With respect to the Public Fire Department, the Government indicates that for the first time 25 women will be joining an inspection monitoring course, while four courses are being designed for men. Applicants are selected on the basis of voting or lot casting, after passing tests and fully meeting the public and private conditions. The Committee further notes the Government’s brief statement that no decisions have been taken with respect to women’s access to the judiciary and that no discrimination exists with respect to access to education and recruitment to the civil service. While noting the action by the Government concerning female officers in the police force, the Committee asks the Government to take even more proactive measures to ensure that women have equal opportunities with men to access all positions under the control of the Government, as well as to promote the equal access of women to positions at all levels in the private sector. Please indicate in this context any measures taken or envisaged to address gender stereotypes and the need to balance work and family responsibilities for both men and women. With respect to women’s access to the police department and the Public Fire Department, the Committee requests the Government to indicate the number of women and men who applied to the Institute for Police Officers and the inspection monitoring course, and those that, after having completed their training as police officers and firefighters, obtained positions in these departments as a result, and at what level. Please also indicate in more detail the “public and private conditions” that have to be met by applicants, and the measures taken to ensure that the selection procedures are free from discrimination.

Migrant workers. The Committee recalls the very high number of men and women of foreign nationality and different ethnic and racial backgrounds working in Kuwait and the particular vulnerability to discrimination based on multiple grounds of migrant domestic workers, the majority of whom are women. The Committee also recalls the apparent absence of practical measures to ensure that foreign workers, including foreign domestic workers, are not subjected to discrimination based on the grounds set out in the Convention, and in particular sex, race, colour or national extraction, as well as the Government’s expression of commitment to address such discrimination. The Committee had already noted in the past some measures taken by the Government aimed at protecting migrant domestic workers, including Legislative Decree No. 40 of 1992 on the regulation of employment agencies for domestic workers, and workers in a similar position, Ministerial Decision No. 617/1992 on organizing rules and procedures for obtaining licences for the agencies supplying domestic workers, and the mandatory model contract for recruiting domestic workers. However, explicit protection against discrimination is not addressed in these texts, nor is it clear how these workers are protected against discrimination in practice. The Committee had also welcomed the steps taken by the Government to provide assistance to migrant domestic workers and to review the sponsorship system, which appears to find its basis in the Foreign Residency Law No. 17 of 1959, and a number of accompanying orders and regulations. The Committee notes that the situation of foreign workers, especially domestic workers, and their effective protection against discrimination was discussed during the ILO technical assistance mission in February 2010, and that following the discussion by the United Nations Human Rights Council of the Universal Periodic Review of Kuwait in September 2010, the Government reiterated its acceptance “to revoke the sponsorship system and replace it with regulations in accordance with international standards” (A/HRC/15/15/Add.1, 13 September 2010). The Committee notes that Law No. 6 of 2010 does not abolish the sponsorship system, but that section 9 of the Law provides for the establishment under the Ministry of Social Affairs and Labour of the Public Authority for Labour Force which shall be responsible for recruiting and employing foreign labour following requests of employers. With regard to rules governing migrant domestic workers pursuant to section 5 of Law No. 6 of 2010, the Committee notes the adoption of the Minister of Interior Resolution No. 1182 of 2010, amending some aspects of Ministerial Decision No. 617/1992 (A/HRC/15/15/Add.1, 13 September 2010). The Committee further understands that steps are being taken to draft a domestic workers bill, which, in addition to the mandatory model contract and other measures taken to support migrant domestic workers, could further improve domestic workers’ rights. Finally, the Committee notes that the Government plans to establish a joint-venture company called the “Kuwait Home Helper Operating Company”, which would have among its objectives the recruitment and employment of domestic workers, and in which the Government would be one of the major shareholders (report of the International Organization for Migration (IOM) on “Labour Migration from Indonesia. An overview of Indonesian Migration to Selected Destinations in Asia and the Middle East” (2010)). The Committee underlines the importance of taking effective action to ensure that the system of employment of migrant workers, including migrant domestic workers, does not place the workers concerned in a situation of increased vulnerability to discrimination and abuse, as a result of disproportionate power exercised by the employer over the worker.

While noting the various steps taken by the Government to improve the system of employment of foreign workers, including domestic workers, the Committee urges the Government to ensure that, in the context of these and other measures taken to protect foreign workers, especially domestic workers, effective measures are taken to prevent discrimination against these workers on the basis of race, sex, colour and national extraction with regard to employment and occupation. In this regard, the Committee hopes that measures will be taken to ensure the observance of the principle of non-discrimination on all the grounds set out in the Convention by the future Public Authority for Labour Force, and the planned “Kuwait Home Helper Operating Company”, and requests the Government to provide information on the measures taken in this regard. The Committee requests the Government to continue to provide information on all measures taken or envisaged to ensure the full application of the Convention in respect of all migrant workers, including information on the following:

(i)    the measures taken to eliminate and prevent discriminatory practices and treatment against migrant workers, especially migrant domestic workers, on all the grounds set out in the Convention, including through providing accessible and effective complaints procedures and means of redress and remedies, and providing adequate information, counselling and legal assistance. Please continue to provide information on the number, nature and outcome of complaints received from migrant domestic workers, the sanctions imposed on employers and remedies provided; and

(ii)   the measures taken to review the system of employment of foreign workers, including the sponsorship system, with a view to decreasing the level of dependency and vulnerability to discrimination of migrant workers, and in particular migrant domestic workers, in relation to their employers. Please provide copies of Minister of Interior Resolution No. 1182 of 2010, the draft bill on migrant domestic workers, and of the legal texts establishing the Public Authority of Labour Force and the planned “Kuwait Home Helper Operating Company”, including information on their mandate and activities.

Stateless persons. With regard to the situation of stateless persons or residents without nationality in Kuwait, the Committee notes that the Government intends to provide information on the participation of residents without nationality (“Bidoons”) in the labour market as soon as it is available. The Committee hopes that such information will be included in the Government’s next report, and asks the Government to include information on the sectors or branches of work in which stateless persons (“Bidoons”) are concentrated.

National equality policy. The Committee recalls the importance of adopting proactive measures in the context of a national equality policy, including with respect to the areas set out in Article 3 of the Convention, and draws the Government’s attention also to Paragraphs 2–4 of the Discrimination (Employment and Occupation) Recommendation, 1958 (No. 111), in this regard. The Committee notes the information in the Government’s report regarding the human rights education in school curricula offered by the Ministry of Education. While such human rights education is certainly of great value in general, the information provided neither indicates that any awareness-raising activities have been undertaken relating to the principles of the Convention, nor that any other measures have been taken with a view to declaring and pursuing a national equality policy. The Committee asks the Government, with ILO assistance, to take more proactive measures to develop and implement a coherent national policy on equal opportunity and treatment in employment and occupation with respect to all the grounds set out in the Convention, and to report on the progress made.