Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Kuwait (Ratification: 1966)

Article 1 of the Convention. Prohibition of discrimination in employment and occupation. The Committee recalls the absence in the Law on Labour in the Private Sector (Law No. 6 of 2010) of any provisions prohibiting direct and indirect discrimination, including sexual harassment, in all aspects of employment and occupation. The Committee notes that the Government refers in its report to article 29 of the Constitution providing for equal rights without distinction on the basis of sex, origin, language or religion, and to sections 191 and 192 of the Penal Code criminalizing and imposing sanctions on any person who “dishonours another person under threat, by force or deceit”. The Committee notes that article 29 does not cover all the grounds set out in Article 1(1)(a) of the Convention nor does it cover all forms of discrimination in employment and occupation. The Committee recalls that constitutional provisions, while important, have generally not proven to be sufficient in order to address specific cases of discrimination in employment and occupation. In addition, the Committee recalls that addressing sexual harassment through criminal proceedings is normally not sufficient, due to the sensitivity of the issue, the higher burden of proof and the fact that penal provisions may not cover the full range of behaviour that constitutes sexual harassment in employment and occupation (see General Survey on the fundamental Conventions, 2012, paragraphs 792 and 851). The Committee notes the Government’s explanations regarding protective measures for women under the Labour Law and the indication that a committee to review the legislation was set up by the Ministry of Justice. The Government also indicates that under Resolution No. 90/a of 2011 of the Minister of Social Affairs and Labour, a joint working committee was established to implement a project on the creation of a legislative environment to support the social empowerment of Kuwaiti women. The Committee once again 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, and covering all workers. The Committee also requests the Government to adopt specific legal provisions defining and prohibiting both quid pro quo and hostile environment sexual harassment at work, including remedies and sanctions. In the meantime, the Committee requests the Government to take the necessary measures to ensure that all workers are protected in practice against discrimination, including sexual harassment, in employment and occupation and to provide full information in this respect. In the context of the current review of the labour legislation, the Government is requested to review sections 22 and 23 of Law No. 6 of 2010 with a view to ensuring that any protective measures concerning women are strictly related to the protection of maternity.

Migrant workers, including domestic workers. The Committee recalls that following the discussion by the United Nations Human Rights Council of the Universal Periodic Review of Kuwait in September 2010, the Government had reiterated its acceptance “to revoke the current sponsorship system and replace it with regulations in accordance with international standards” (A/HRC/15/15/Add.1, 13 September 2010, paragraph 82.19). The Committee recalls however 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 Manpower in charge of recruiting and employing foreign labour following requests of employers. The Committee welcomes the adoption on 12 May 2013 of Law No. 109 establishing the Public Authority for Manpower, which is responsible for managing the employment of migrant workers in the private and the oil sectors and issuing rules and procedures regarding work permits and transfers from one employer to another employer. With respect to domestic workers who are excluded from the scope of Law No. 6 of 2010, the Committee also notes that the Ministry of Interior has set up a Domestic Workers Department (DWD) which is responsible for enforcing the provisions of Law No. 40 of 1992 and Ministerial Order No. 1182 of 2010 on the Regulation of Recruitment Agencies for Domestic Workers, through periodical inspections of the agencies. The Government indicates that the DWD receives the complaints lodged by domestic workers against their sponsors with respect to the non-payment of wages and maltreatment, conducts investigations and takes the necessary measures to ensure that workers receive their entitlements and rehabilitation. The Ministry of Interior also verifies the accuracy of the “absenteeism notifications” submitted against workers and makes sure that the workers concerned are not repatriated before having obtained their entitlements. The Committee notes the Government’s indication that the establishment of the planned “Kuwait Home Helper Operating Company” is currently under examination. The Committee requests the Government to take the necessary steps, without further delay, to ensure that the rules, procedures and practical measures to be adopted either by the Public Authority for Manpower, the DWD or otherwise, ensure that the new system of employment of migrant workers, including domestic workers, does not place or maintain 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. The Committee requests the Government to continue to provide information on all measures taken or envisaged to review the sponsorship system and ensure the full application of the Convention in respect of all migrant workers. Please include specific information on the progress made on the draft Bill on Migrant Domestic Workers and the establishment, mandate and operational work of the Kuwait Home Helper Operating Company.

Article 2. National equality policy. Noting that the Government’s report contains no information in this respect, the Committee once again requests the Government to develop and implement 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, and to provide information on any progress made in this respect.

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