Document Sample
12 Powered By Docstoc
					                                                                                                                                                                                                                                         ARAB TIMES, MONDAY, MAY 9, 2011
    ISSUES                                                                                                                                                                                                                                                                           12

                                                                                                                  SPECIAL REPORT

               insight                                                                                                                                                     A conversation with Mostafa Saad

                                                                                            Contracts should not violate Labor Law

New Labor Law beneficial to employees
           By Iddris Seidu                   execution of the laws and regulations.                                                                                                           Therefore, it is clear the labor law is fair   terminate his work contract without
           Arab Times Staff                     Secondly, let’s look at the command-                                                                                                       for all nationalities. It truly seeks public      notification and shall be entitled to his
                                             ing nature of the rules of the labor law.                                                                                                     interest, and will attract many employers         end of service benefit in any of the fol-
MOSTAFA Mohamed Saad, Legal                  One of its most important features is                                                                                                         to work in the private sector because             lowing cases:
Counsel at Abulhameed Al Sarraf &            the commanding nature of its rules,                                                                                                           according to these new laws, even private            a- If the employer does not abide by
Partners Law Firm, International             especially those of articles 6, 7, 28 and                                                                                                     sector employees now stand to benefit             the terms of the contract or the provi-
Division — in an interview with the          115. The employer shall not make an                                                                                                           almost on par with public sector employ-          sions of the law;
Arab Times — explains in great detail        agreement that violates the rules of the                                                                                                      ees.                                                 b- If the worker was assaulted by or
the new labor law, and how the amend-        labor law. The employer cannot com-                                                                                                              The new labor law is reasonable and            by the provocation from either the
ed rules benefit employees, and work         promise the rights of workers below                                                                                                           fair and it does not in any way negatively        employer or his deputy.
to the advantage of the nation’s econo-      the minimum prescribed rights given                                                                                                           impinge on the development process of                c- If continuing work will endanger
my. He makes a strong case for the new       by the law to the worker.                                                                                                                     the country. The concerns that the new            his safety and health pursuant to the
labor law and rather emphatically               Thirdly, let’s consider how the law                                                                                                        law has given a big leeway to employees           decision of the medical arbitration
proves that it is a big leap in the coun-    protects the economic interests of the                                                                                                        by way of long leaves are unfounded,              committee at the Ministry of Health.
try’s approach to development.               workers. The law has set the minimum                                                                                                          because the leaves are very reasonable               d- If the employer or his deputy com-
   Question: Can you put the new             salary for workers at KD 60. Issued on                                                                                                        and fair. Holidays for religious occasions        mitted an act of cheating or fraud with
labor law in perspective for us? What        25/4/2010 the ministerial decision No.                                                                                                        and national celebrations are a must for          regard to work conditions upon signing
were the main objectives of the amend-       (185/p) of the year 2010 has set out a                                                                                                        the people. There is no doubt that equali-        the contract.
ments?                                       minimum salary for private sector                                                                                                             ty of public and private sectors in the mat-         e- If the employer has accused the
   Answer: There is no doubt that the        workers. It is not permissible to force                                                                                                       ter of leaves is a good thing.                    worker of committing a punishable act
new labor law No. 6 of the year 2010         the worker to buy food or commodities                                                                                                            Some highlights of the new Labor               and the final verdict acquitted him.
made a great impact on the employers         from specific shops or what is being                                                                                                          Law:                                                 f- If the employer or his deputy com-
immediately after its issuance. By issu-     produced by the employer. The                                                                                                                    Article (22)                                   mits an act that violates public morals
ing the new labor law No. 6 of the year      employer is liable to pay salaries of his                                                                                                        It is prohibited to employ women at            against the worker.
2010, the state aimed to restructure         employees during the closing period.                                                                                                          night during the period from 10:00 at                Article (49)
manpower in the State of Kuwait and             The law ensures that deduction out-                                                                                                        night to 7:00 in the morning. This                   The work contract shall be terminat-
encourage Kuwaiti civilians to work in       come against disciplinary sanctions                                                                                                           excludes hospital, sanatoriums, private           ed by the death of the worker or in the
the private sector through advantages        benefits the employee. The benefits are                                                                                                       treatment homes and establishments in             event where the worker is proven inca-
and rights stipulated in this law as the     not to be transferred to the public treas-                                                                                                    respect of which a resolution by the              pable of performing his work, or due to
foreign workers form more than 80            ury as it is in the civil service law pur-                                                                                                    Minister of Social Affairs and Labor              a sickness that uses up all the workers’
percent of manpower in Kuwait. There         suant to articles 38, 39, and 40 thereof.                                                                                                     shall be issued.                                  sick leave entitlements as evidenced by
are 2.3 million expatriates and 1.1 mil-        According to the new labor law, the                                                                                                           Article (24)                                   a medical report approved by compe-
lion Kuwaiti civilians.                      employers pursuant to provisions of                                                                                                              A pregnant working woman shall be              tent official medical bodies.
   The job market in Kuwait, like the        this law shall pay receivables of their                                                                                                       entitled to paid maternity leave of 70               Article (50)
rest of the Gulf states, comprises of dif-   workers to their accounts, and a copy                                                                                                         days, not included in her other leaves,              The employment contract shall be
ferent nationalities. There are more         of statements sent to the ministry of                                                                                                         provided that she gives birth within this         deemed terminated in the following
than 150 nationalities characterized by      Social Affairs and Labor.                                                                                                                     period.                                           events:
diversification, mobility, instability,         It is also not permissible to deduct                                                                                                          After the end of the maternity leave,             a- If a final verdict was issued
cultural, social and religious differ-       more than 10 percent of employee’s                                                                                                            the employer may give the working                 declaring bankruptcy of the employer.
ences. These characteristics impose on       salary in order to meet debts or loans.                                                                                                       woman, at her request, an unpaid leave               b- If the establishment was perma-
everyone the need to tolerate one               The law is flexible to include as                                                                                                          for a period not exceeding four months            nently closed.
another and maintain security and eco-       salary all that has been stipulated for                                                                                                       to take care of the baby.                            In the event where the establishment
nomic stability.                             the worker including things like car                                                                                                             The employer may not terminate the             is sold, merged with another establish-
   The new labor law includes many           allowance, and others allowances such                                          Mostafa Mohamed Saad                                           services of a working woman while she             ment or transferred by inheritance,
advantages that grant labors their rights    as residence and travel tickets for him                                                                                                       is on such leave or during her absence            donation or other legal action, the work
against arbitrariness that they were         and his family. Therefore, all these                                                                                                          from work because of a sickness that is           contract shall remain valid under the
exposed to in many worksites.
   Most countries that have workers in
                                             things shall be added to the basic salary
                                             as mentioned in the contract. The
                                                                                                          biography                                                                        proved by medical certificate that
                                                                                                                                                                                           states that the sickness resulted from
                                                                                                                                                                                                                                             same conditions and the obligations
                                                                                                                                                                                                                                             and rights of the original employer
Kuwait are happy; however, there were        amounts which the employee gets in                                                                                                            pregnancy or giving birth.                        towards the workers shall be trans-
some are not happy with the conditions       addition to these things for his per-               Mostafa      Mohamed       Saad            Association. He has worked at                     Article (25)                                   ferred to the employer who has taken
of their workers in the private sector.      formance and so on shall not be                     Mohamed Ali is the Legal                   the New Marine Company for                        The working woman shall be                     his place.
Then there were Human Rights                                                                     Counsel at Abdulhameed Al-                 shipping services as an in-
                                             deemed as salary.                                   Sarraf & Partners Law Firm,                house     lawyer,     and   the                allowed a two-hour break during her                  Article (51)
Organizations and International Labor           Article 55 of the new Kuwaiti labor              International Division. He grad-           International     Division     –               working hours in order to feed her baby              The worker shall be entitled to an end
Organization who had many reserva-           law signifies that salary annexed is an             uated in Faculty of Law –                  Mohamed Gbreel Seyom law                       according to such conditions as shall be          service benefit as follows:
tions against some of the practices in       example but is not limited to it, as                English Department – from                  firm in Alexandria, Egypt. He                  set forth in the Ministry’s decision. The            a- The worker shall be entitled to a 10
our country. The labor law is a historic     salary has many forms.                              Alexandria University, and is a            joined Abdulhameed Al-Sarraf &                 employer shall establish a nursery for            days remuneration for each of the first
and civilized achievement, and it is not        Salary annexed according to the new              member of Egyptian Bar                     Partners law firm in Jan 2010.                 children below the age of 4 at the place          five years of service and a 15 days remu-
of only national importance, but it is       labor law should include periodical                                                                                                           of work in the event where the number             neration for each year thereafter. The
significant even internationally.            premiums and determination of salary                                                                                                          of female workers exceeds 50 or the               total of the end of service benefit shall not
   The new law represents a qualitative      with a share of profits.                        70-day maternity leave. The law also           guarantees the right of the employee to        number of workers exceeds 200.                    exceed one-year remuneration for
leap in workers’ rights as the old law          Q: The leave rules in the new labor          grants a female employee the right to          defend himself against accusations                Article (32)                                   employees who are paid daily, weekly,
issued in 1964 was more than 47 years        law were much talked about. Can you             request for non-paid leave of up to four       according to article 37 of labor law.             The probation period of the worker             hourly or piecework basis.
old and was created for those times. We      shed more light on that aspect of the           month to take care of her baby.                   With regard to forming syndicates,          shall be specified in the work contract,             b- The worker shall be entitled to a 15
have moved far ahead now, and have           law, and show us the plusses and                   For Muslim women, the Idda leave is         the law grants all Kuwaiti employees           provided that it shall not exceed 100             days remuneration for each of the first
witnessed many developments with             minuses in them?                                estimated to be four months and ten            the right to form syndicates according         working days. Either party may termi-             five years of service and one month
which the old law did not keep pace.            A: Firstly, let’s look at the leave peri-    days from the date of the death of her         to article 90.                                 nate the contract during the probation            remuneration for every year thereafter.
The old law was also becoming a stum-        ods stipulated for employees. The               husband. She is not supposed to work              To give you an idea about how keenly        period without notice. In the event               The total of the end of service benefit
bling block for achieving our goals,         annual leave shall be thirty days due           for anyone else during this period.            the legislators have tried to protect the      where the termination is made by the              should not exceed one and a half year
especially those of the Kuwaiti youth        after nine months of work. The legisla-            Non-Muslim female employees can             rights of workers, the law says that it is     employer, he shall pay the worker’s               remuneration for employees who are
who want to work in the private sector.      tors also took into consideration holi-         obtain 21 days of paid leave upon the          not permissible to terminate the service of    end of service benefit for the period of          paid on a monthly basis.
The national work law paved the way          days that are not included in the annual        death of their husbands.                       an employee without justification pur-         work in accordance with the provisions               The worker shall be entitled to benefit
for a large number of citizens to enter      leave: official holidays and sick leave                                                                                                       of this law.                                      for the fraction of the year in proportion
the private sector. The old law did not                                                         Then there is the law pertaining to spe-    suant to article 46 of labor law, and the
                                             shall not be computed as annual leave.          cial nurseries for children less than 4        law also outlines the liabilities of employ-      The worker shall not be on probation           to the period of service. Loans and cred-
have enough incentives to encourage             The employee has the right to accu-                                                                                                        more than once for the same employer.             its owed by the workers shall be deduct-
the citizens to opt for private sector as                                                    years as stipulated in article 25. The terms   ers on communiqué of absenteeism of an
                                             mulate leave for a maximum of two               of application of this commitment              employee.                                      The Minister shall issue a resolution to          ed from the end of services benefit.
a viable job opportunity area.               years, and he can with the approval of                                                                                                        organize the conditions and regulations              The provisions of the Social Security
   Many texts of the new law have pos-                                                       include: These should be special nurseries        The employer who submits a notice on
                                             the employer take those leaves at one           for children less than 4 years old, there-     one of his employee’s absenteeism has to       of work during the probation period.              Law shall be taken into consideration in
itive points that reflect on both the        go. Accumulating leave for more than                                                                                                             Article (42)                                   this regards, and the employer shall pay
employers and workers. The most                                                              fore children older than 4 years will not      put a copy of it in an apparent place in the
                                             two years is permissible with the con-          benefit from it. These nurseries of chil-      company. The employer who has submit-             In the event where the employee is             the net difference between the amounts
important advantages are training,           sent of the two parties.                                                                                                                      absent from work for 7 consecutive                accrued due to the subscription of the
qualification, attention to woman,                                                           dren should be at work places, where the       ted the notice of absenteeism of one of his
                                                The official leave in the new labor          mother is working.                             employees is not supposed to allow the         days or 20 separate days within a year            worker in the social security and to the
employee right to perform Haj without        law stipulated in article 68 resembles                                                                                                        without a valid excuse, the employer              end of service benefit.
deduction of his salary and the right to     the civil service law. The Haj leave is            Moreover, the new labor law also            said employee to get back to work before       shall have the right to consider him as              Article (52)
annual leave.                                for 21 paid days. The legislators also          offers the right to insurance for employ-      consulting the competent work depart-          having resigned.                                     Subject to the provisions of Article of
   The law ensures the employees get         amended the sick leave. The sick leave          ees. This law is valid according to article    ment and cancellation of the communiqué           Article (44)                                   this Law, the worker shall entitled to the
to live a respectable life, enjoying the     for an employee is15 full-paid days, 10         88 for all industries and workplaces in        of absenteeism.                                   In the event where the term of the             entire end of service benefits stated in the
goodness of life as these are important      with three fourth paid days, another 10         which the employee is exposed to work             The law prescribes a long notice            work contract is not specified, both              preceding Article as follows:
factors that affect work quality. For        half pay, the following 10 days will            injuries or profession-related illnesses.      period of three months to end an               parties shall have the right to terminate            a- If the employer terminates the con-
example, women have special leave for        have a third of the salary, and one                Q: What about the expenses for              unspecified term contract pursuant to          the same by means of a notice to the              tract.
situations like Idda (mourning period        fourth salary for the next 10 days. If          treatment or medicines of injured              article 44. And as per the end of service      other party as follows:                              b- If the duration of the contract
on the deal of the husband) and child-       the leave extends beyond that, the              workers? There could also be travel            gratuity, the new labor law says that             a- Three months prior to the termina-          expired without being renewed.
birth. Women enjoy leave of consider-        employee can have 30 more days of               expenses in some cases. How does the           when an employee is dismissed from             tion of the contract for the workers                 c- If the contract was terminated in
able length for these reasons.               non-paid leave.                                 new law deal with these scenarios?             service, he has the right to end of serv-      earning a monthly remuneration.                   accordance with Articles 48, 49 and 50 of
   The new labor law curtails human             Then there is educational paid leave            A: The law takes a rather broad             ice gratuity.                                     b- One month prior to the termina-             this Law.
trafficking, protects foreign employees      to obtain a higher educational certifi-         approach to these issues, and does not            The new law amended the end of              tion of the contract for other workers.              d- If the female worker terminates the
from arbitrary dismissal and guarantees      cate, a leave on the death of first or sec-     stick to the old law of considering            service gratuity terms to the interest of         In the event where the party wishing           contract as a result of her marriage with-
stability of work contracts even with        ond class relatives, and paid leave for         work-related injuries as those occur-          the employees. Article 51 of labor law         to terminate the contract does not abide          in a year after the date of marriage.
changing employers. In addition, it          attending conferences.                          ring at the place of work alone. Any of        stipulates the employer deserves end of        by the period of notice, he shall be                 Article (53)
grants the worker the right of compen-          Q: What about disciplinary sanc-             the following cases are valid for com-         service gratuity in the following terms:       obliged to pay the other party a com-                The worker shall be entitled to half of
sation against arbitrary dismissal. The      tions being imposed during the period           pensation from the employer: accident          salary of ten days for each year of serv-      pensation for the notification period             the end of service benefits stipulated in
new labor law guarantees compensa-           of the work contract?                           because of work, accident while at             ice of the first five years and fifteen        equal to the remuneration of the work-            Article 51 in the event where he termi-
tion to employees for work accidents.           A: It is not permissible to deduct an        work, accident on the way to work and          days of each year for the following            er for the same period.                           nates the work contract which has an
The legislators of the new law decided       employee’s salary for a period exceed-          accident on the way back from work.            years. The gratuity does not exceed the           c- In the event where the notification         indefinite term and the period of services
that if any accident happens to a work-      ing five days in a month. There are also           The new law also stipulates the             salary of a year, and this is for employ-      of termination is issued by the employ-           reaches five years and less then 10 years,
er at the work site, he should be duly       rules for the suspension of an employer         terms of liability for former employers        ees whose salaries are paid on a daily,        er, the worker shall have the right to be         the worker shall be entitled to two thirds
compensated.                                 for investigations or for disciplinary          in the case of injured employees. The          weekly or hourly basis.                        absent one day or 8 hours per week in             of the benefit and if the period of service
   Q: What are the most important            suspension in article 39.                       employees are entitled to compensation            The gratuity totally does not exceed        order to search for other work. He shall          exceeds 10 years, the worker shall be
advantages of the new labor law? How            Q: Can you highlight in what ways            if the industries where they work or the       the salary of a year and a half for            also be entitled to his remuneration for          entitled to his entire benefit.
do you see it benefiting the people and      the law is favorable to women in                nature of their work causes diseases or        employers whose salaries are paid              the day or hours of absence.                         Article (54)
the country?                                 greater detail?                                 injuries to the worker. Compensation is        monthly. Workers in this category are             The worker shall decide on the day                The worker who terminates his work
   A: Okay, let’s consider some of the          A: Article 21 of the new labor law says      decided after determining the period           entitled to 15 days pay for each of the        or hours of absence and shall notify the          contract shall be entitled to an end of
important issues the law deals with.         that it is not permissible to employ            which the employee spent working for           first five years and one month’s pay for       employer at least one day prior to such           service certificate from the employer
Firstly, let’s look at the penalties for     women at night between 10 pm and 7 am.          both the employers.                            each year after that. But he will get half     absence.                                          stating the duration of his services, his
companies in the new private sector             The new labor law also gives female             Each employer is liable to a percent-       if his service is over 3 years but less           d- The employer may exempt the                 position and the last remuneration he
labor law. Law No. 6 of the year 2010        employees many leaves such as annual            age of the compensation based on the           than 5 years and full indemnity if his         employee from work during the period              received. The employer shall not have
doubles penalties on private companies       official leave, festival leave, Haj leave,      period which the employer spent at             service is over 10 years.                      of notification while but shall count             the right to include, explicitly or
that humiliate its workers. The sixth        sick leave, maternity leave followed by         each one’s service.                               And as stipulated in Article 53 of labor    such period within the worker’s period            implicitly, any expressions that may
article under that law, entitles investi-    leave to take care of newborns.                    Q: What about disciplinary action           law if the service work period reaches         of service. The employer shall pay the            harm the employee or limit his employ-
gation and penalties of work, and the        Maternity leave is of 70 days.                  against employees? What does the law           five years but is less than ten years, the     worker all his entitlements and remu-             ment prospects. The employer shall
first chapter, which includes articles          A pregnant employee is also entitled         state on that?                                 employee deserves two thirds of the            neration for the period of notification.          return to the worker all the documents,
133 to 136, grants workers the right of      to paid annual leave which will not be             A: The law clearly states the right of      salary, and this is if the employee termi-        Article (48)                                   certificates or tools delivered to him by
invoking judicial intervention to detect     computed with or deducted from the              workers even on that count. The law            nates his unspecified work contract.              The worker shall have the right to             the employee.