FREEDOM AGENDA: THE PROPOSED NEW LABOR LAW:

UNCLAS SECTION 01 OF 03 KUWAIT 000972

SIPDIS

SENSITIVE
SIPDIS

FOR NEA/ARP, INL/HSTC AND G/TIP

E.O. 12958: N/A
TAGS: ELAB PHUM KU TIP
SUBJECT: FREEDOM AGENDA: THE PROPOSED NEW LABOR LAW:
CRITIQUES, CONTENT, AND PROSPECTS

REF: A. KUWAIT 804

B. KUWAIT 768


1. (U) Summary: The Government has identified passing a new
Labor Law as one of its legislative priorities, though Post
contacts doubt its passage in the short term. The Kuwait Bar
Association held March 13 a seminar to debate the benefits of
a proposed new Labor Law. The participants, representing
most of the major sectors concerned with the labor law,
criticized the new law sharply, especially for not adequately
addressing expatriate labor issues and for not encouraging
the modernizing of private sector and domestic (i.e.
household) labor. The proposed law, like the current labor
law, would not apply to domestic laborers, who would remain
under the administrative responsibility of the Ministry of
Interior. Despite the failings of the new law, it does
contain TIP and human-rights-related provisions, such as
criminalizing the exploitation of foreign workers through
visa trading and charging workers fees to remain in the
country. End Summary.

Prospects for the Labor Law's Passage
--------------


2. (U) The new Government has called for greater political
and economic reform, and included the Labor Law as one of its
top priorities. Assistant Undersecretary for Labor Affairs
at the Ministry of Social Affairs and Labor (MOSAL),Abdullah
Hamad Al-Me'dhadi, told LES Political Specialist that the
Council of Ministers has approved the law. It is now
awaiting Amiri approval, after which it will be transferred
to the relevant committee at the National Assembly. Absent a
formal Government letter asking that it be moved to the top
of the agenda, it could stay in the committee indefinitely.
Dr. Salih Al-Shaykh, who is filling in for Al-Me'dhadi while
he is on medical leave, further cast doubt on how soon the
law would be passed when he told guests at a seminar on the
Labor Law (see below) that there is still time to make
changes.

Press Law Sets a Precedent?
--------------


3. (SBU) Like the recently passed Press and Publications
Law, the proposed Labor Law would update legislation that
passed over 40 years ago. After years of discussion and
delays, the Press Law was quickly whisked through the
National Assembly. In the end, however, that law represented
an incremental change, at best. The same can be expected of
the Labor Law: it is unlikely that the Kuwaiti parliament
will make the kind of significant changes that liberals and
international observers would like. Whereas most liberals
wanted to pass the Press and Publications Law and then refine
it through amendments, liberals at the Labor Law meeting took
a harder line, insisting that it should not be passed in its
current form. Post contacts, including two members of the
committee in the National Assembly that handles the law, gave
the impression that the law has little momentum and probably
will not come up for serious discussion until after elections
and the convening of the next National Assembly in October

2007. It is worth noting, however, that the Press and
Publications Law passed faster than expected. End Comment.


Labor Law Seminar Presents Critiques of the Law
-------------- --


4. (U) The Kuwait Bar Association convened a seminar on
March 13 to discuss the proposed new Labor Law, which would
replace the 1964 Private Sector Labor Law. The seminar --
titled "The Proposed New Labor Law: Positives, Negatives and
Aspirations" -- brought together a Member of Parliament
(Ahmad Al-Mulaifi),the ILO Representative in Kuwait (Thabet
Al-Haroun),an official from the Ministry of Social Affairs
and Labor (MOSAL) (Salih Al-Shaykh),a representative of the
Kuwait Chamber of Commerce (Yousef Al-Ali),a legal advisor
to the Kuwaiti Courts (Abdul-Hadi Al-Jafeen),and a professor
from Kuwait University (Jamal Al-Nakkas). With the exception
of some positive remarks from the Chamber of Commerce and
MOSAL representatives, the participants criticized the law
sharply for not aggressively addressing the key labor issues
in Kuwait.


5. (SBU) MP Al-Mulaifi criticized the law for not
addressing the issue of residence permit ("Iqama") trading,
attracting Kuwaitis to the private sector, and protecting
foreign workers. He floated the idea of creating one or
several publicly traded companies that would provide laborers
to employers in Kuwait. This would wipe out the thousands of

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smaller employment agencies, many of whom engage in Iqama
trading. He said that MOSAL officials had rejected laws
proposing this type of arrangement in the past because, as he
told LES Political Assistant, they are "complicit" in visa
trading and such a law would threaten their profits.


6. (U) ILO Representative Al-Haroun said the Government had
failed to consult independent and international experts, and
thus had come up with a law that does not meet modern labor
standards. MOSAL's Al-Shaykh responded that they had
consulted the relevant Kuwaiti institutions in preparing the
law.


7. (U) Al-Jafeen criticized the law for failing to
establish a set of courts for adjudicating labor issues.
Al-Nakkas noted that there were benefits in the law, such as
making accommodations for working women, but that the
negatives outweighed the positives and the law needed to be
restudied. For instance, the law does not mandate insurance
for all workers, it allows the courts to dissolve labor
unions, and it allows for "collective contracts" rather than
"collective agreements." Dr. Al-Ali added that there are
tens of articles that contain vague language and depend on
the Minister to issue a decree with implementation details.
He went on to say, however, that no law will be perfect, and
that this law will prevent Kuwait from coming under
international condemnation.


Domestic Labor
--------------


8. (U) The proposed law explicitly excludes domestic
laborers (who, according to the General Manager of the
Immigration Department at the Ministry of Interior, number
520,000 in Kuwait),as does the current Labor Law. In a
December meeting with PolOff, Al-Haroun said the ILO wanted
the law to include domestic laborers, but that there was no
realistic chance that it would do so because Kuwaiti society
would not support the idea. Al-Shaykh confirmed in a March
19 meeting with PolOff and LES Political Assistant that there
was no thought of including domestic laborers in the Labor
Law.


TIP and Human Rights Aspects of the Proposed Labor Law
-------------- --------------


9. (U) The most recent version of the draft law contains
important provisions related to the State Department's
Trafficking in Persons (TIP) Report and Country Reports on
Human Rights Practices.

-- Article 132 imposes a prison sentence of up to 3 years
and/or a fine of 1,000 - 5,000 Dinars (3,430 USD - 17,150
USD) for visa trading. Note: the law does not label it as
visa trading, but rather says the following: "It is not
permitted for a business owner to hire workers from outside
the country or to use workers from inside the country then
proceed to not offer them work with him or if it becomes
clear that he does not really need them." (Article 10, par 2)
End Note.)

-- Article 131 imposes a fine of up to 500 Dinars (1715 USD)
for failing to declare accurately on an annual basis the
number of foreign workers needed and actually employed. The
same penalty applies for failure to prominently display a
listing of pre-approved (by MOSAL) work rules and punishments
for infractions of those rules. The fine will be doubled if
it is repeated within three years.

-- Article 133 imposes a fine of up to 5000 Dinars (17,150
USD) and closure of the business for 3 - 6 months for
recruitment agencies that charge any fees to workers for the
privilege of finding them work or allowing them to stay in
the country.

-- Article 16 mandates that apprentices and trainees be paid.

-- Article 18 bans children under 15 from working. Articles
19 and 20 limit the hours and industries in which children
aged 15 - 20 can work, and mandates that they be given
medical exams at least every six months.

-- Article 30 forbids a worker from being subjected to a
probation period of more than 100 days, and from undergoing
more than one probation period with the same employer.

-- Article 31 stipulates that subcontracted workers receive

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treatment equal to regular employees of the subcontractor.

-- Article 32 mandates that free housing (or a housing
stipend) and transport be provided for projects in outlying
areas and that the housing be according to minimum standards
set by MOSAL. (Note: Poor housing conditions are a major
complaint of Bangladeshi and other low-skilled workers in
Kuwait. End Note.)

-- Article 35 forbids the employer from pinning a violation
on a worker without hearing and investigating the worker's
defense. The violation and punishment must be provided to
the worker in writing.

-- Article 36 forbids the employer from docking more than
five days pay out of any month for a violation. If the
punishment sum is greater than five-days' pay, it must be
taken out of future months' pay.

-- Article 44 forbids the firing of a worker without cause
or because of his union involvement or demanding his rights
according to this law.

-- Article 46 lays out conditions when a worker can quit
without notice and claim a severance payment, such as if the
employer subjects the employee to harassment, if the employer
does not provide a safe work environment, if the employer
falsely accuses the worker, if the employer committed fraud
in signing the contract, or if the employer violates the
terms of the contract

-- Chapters II and III (Articles 61 - 76) lay out expanded
rest periods and vacations.

-- Chapter IV (Articles 77 - 94) mandates occupational
safety and health.

-- Chapter V (Articles 95-116) sets out rules for
unionization and collective contracts. The Ministry controls
the licensing and policing of unions, which can then sign
collective contracts. (Note: Whereas the current labor law
explicitly states that foreigners cannot elect or be elected
to leadership positions, the proposed law says all Kuwaitis
have this right. It leaves ambiguity as to whether foreign
workers can vote or be elected. In a conversation with
PolOff, a lawyer from MOSAL gave PolOff opposing
interpretations of this law: that it will be up to the
Minister to issue instructions on non-Kuwaiti membership; and
that it will be up to the union to decide whether to allow
non-Kuwaitis to join as full members. The lack of an
explicit grant of this right to foreigners probably means
that they will not get it. End Note.)

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LEBARON