The Ministry of Interior Affairs announced several regulations in 2016 and early 2017 to complement the domestic workers' law that came into effect in 2015. The regulations elaborate on payment of wages, employers' abuse, overtime work, and the responsibilities of recruitment agencies but fail to add much substance to the law. They do not provide meaningful enforcement mechanisms nor do they adequately hold erring employers accountable. Rather than proactively protecting and guaranteeing workers' rights, the law and its regulations offer only the slim potential to compensate to workers who manage to navigate the arduous road to lodging and seeing through a complaint.
Unpaid Wages & Overtime
The regulations make it the responsibility of the employer to present proof of monthly wages, but only if authorities inquire.
Most often, this requisition would be in response to a complaint filed by the domestic worker. However, ground realities are such that workers cannot easily file complaints. Their mobility is so highly restricted that even if they are given a day off, the chances they are allowed to leave their employer's home unchaperoned - or at all - is limited. Local laws effectively treat domestic workers outside the household as illegal, subject to search and scrutiny. So for a domestic worker to leave her place of employment and file a case would mean they risk their legal status in the hopes that the Domestic Workers’ Directorate will resolve their dispute.
At a recent seminar on domestic workers in Kuwait, President of the Social Work Society in Kuwait (SWS) Bibi al-Sabah said the ministry should require by contract that workers possess their own cell phones to help them reach authorities, embassies, as well as to keep in touch with family.
When asked about the possibility of using the Wage Protection System for domestic workers, the head of domestic labour directorate Muhammad al-Ajmi blamed the Central Bank of Kuwait and the Bankers’ Union for rejecting such a proposal.
The regulations also state that overtime labour should not exceed 2 hours and must be compensated with a half day's pay. But how could workers prove they've been overworked if there's no procedure for documenting hours, or even defining domestic work? For example, is a worker who is on call still working?
Without regular inspection, how can the ministry be sure that employers are following the new regulations?”
Speaking to Migrant-Rights.org, president of the Kuwait Society for Human Rights Khaled al-Ajmi stresses the need to outline enforcement mechanisms in the law. “Without regular inspection, how can the ministry be sure that employers are following the new regulations?”
While accepting that the law provides the foundation for greater reforms, al-Ajmi emphasises that workers are unable to represent and empower themselves without the fundamental right to association.
The obstacles to true justice are exemplified in a recent case. A domestic worker escaped her employer after 11 years of working without wages, went to a police station and asked to be repatriated She received KWD 5000 and a return ticket home. She accepted the deal to end her misery but the employer faced no prosecution or further penalty. Instead, the ministry required her to sign a clearance preventing her from pursuing charges against the employer in future. Muhammed al-Ajmi stated the ministry cannot prosecute the employer because “there is no legal ground to do so. All we can do is to suspend him from recruiting workers.” He complains that laws “restrict the ministry’s power to take action against employers, workers, and agencies alike”
Employers charged with a violation now face a six-month ban on recruiting new workers. If an offence is repeated, the suspension period is doubled. This penalty addresses future violations to a limited extent and does not indicate that employers will face any other penalties proportional to the severity of the violation, such as physical abuse or forced labour. Merely withholding permission to recruit a new worker is not sufficient as suspended employers can simply employ workers that a family member recruits.
The regulations attempt to hold recruitment agencies responsible for workers who do not meet employer's expectations. If the worker refuses to work or cannot work, or if the employer was provided false information about the worker's qualifications, the agency must pay for the workers' departure and reimburse employers' recruitment fees. Making agencies responsible for these costs without adequate monitoring will mean more workers will be pushed to work under duress.
According to the Directorate, 68 agencies have lost their licenses for violating the domestic worker labour law.
Plans to establish a public shareholding company to centralise domestic worker recruitment agencies, which were designed to lower employer's recruitment fees, have been shelved until August.
Earlier this year, the MoI announced it would no longer be easy for employers to report workers as absconded. Employers are now required to appear in person at the Directorate to file a case. When employers submit absconding reports, their claims are no longer taken at face value but will be further investigated.