innerpage-ad1-cuzine
Search
Search

Covid-19 Crisis And Its Impact On Migrant Workers In The State Of Kuwait From A Legal Perspective

Covid-19 Crisis And Its Impact On Migrant Workers In The State Of Kuwait From A Legal Perspective
By: null

//Atyab Alshatti//Human Rights Lawyer

 

The novel coronavirus disease (COVID-19) has impacted the lives of people immensely. In order to address this crisis, the government of the State of Kuwait adopted several precautionary resolutions. One of these resolutions was the suspension of work at the governmental sector. This resolution also mentioned that workers shall be provided with a fully-paid leave during the suspension period. Workers were deemed in office during the suspension period so that their rights remain preserved. In addition, the government imposed a curfew and suspended several activities, which led to the partial closure of many shopping centers and malls including car repair shops, women and men salons, and gyms. This directly impacted labor contracts for those working in the private sector as per the Labor Law No. 6 of 2010. In these exceptional circumstances, several questions are being been raised regarding labor rights under the above-mentioned law:

 

1- Can the employer terminate the labor contract with the worker?
The adopted resolutions do not entail the permanent closure of any of the establishments mentioned therein. The resolutions stipulate a number of temporary precautionary measures, leading to the temporary or partial closure of some establishments. Such measures also disrupt the normal flow business
and could incur huge losses. According to Article 50 of the said law, the employer is not allowed to terminate the labor contract with the worker: “The employment contract shall be deemed terminated… if the establishment was permanently closed” and this does not apply in the current circumstances.
Furthermore, the contract cannot be terminated due to force majeure, as this requires the impossibility to implement contractual obligations. This is not generally applicable in this case. One must refer to the provisions of the labor law before applying a general principle such as the force majeure. The reason is that labor law is a private law, and the rule is private laws limit general principles.
Articles 44-50 of the labor law mention the different cases where the labor contract shall be terminated. Exceptional circumstances that lead to the temporary closure of the establishment is not among them. Articles 45 and 46
impose restrictions to the employer when terminating the labor contract:
1- Article 45: “The employer shall not use the right of termination granted to him … when the worker is enjoying one of the leaves stipulated in this Law.”
2- Article 46: “The service of the worker shall not be terminated without any
justification.” Furthermore, Article 61 states that: “The employer shall pay the workers’ remunerations during the closure period, in the event where he deliberately closes the establishment to force the workers to obey and submit to his demands. He shall also pay the remuneration of workers throughout the complete or partial period of closure in case such closure is due to any other reason not related to the workers as long as the employer wishes them to keep
working for his account.”
This means that the suspension of an establishment for a reason beyond the worker’s control does not constitute a legitimate reason for the termination of the labor contract.
Therefore, the employer must not terminate the labor contract regardless of the reason of the establishment’s suspension if the reason is beyond the workers’ control and if the employer wishes the workers continue to work for him. Article 61 also mentions that the employer is required to pay the workers’ wages during the entire duration of the establishment’s partial or complete suspension, which is beyond the workers’ control.

2- Is it possible to consider the labor contract on hold?
If the labor contract cannot be terminated in the current exceptional circumstances, is the employer allowed to put the contract on hold until the circumstances resolve? Is it possible to temporarily stop the worker from working and the employer from paying the wages?
According to the labor law, labor contracts can be suspended in some cases:
1. The contract can be suspended for a period of no more than 10 days in the interests of an investigation.
2. The contract can be suspended in cases when it is impossible to implement
the contract, such as when Iraqi invasion happen in 1990 (verdict of the Cassation Court precedes the issuance of law no. 6 of 2010).
Article 61 of the Labor Law does not stipulate that it is allowed to suspend the labor contract if the establishment is closed for a reason beyond the worker’s control. The article requires the employer to continue to pay the wages of the workers as long as the employer wants them to continue to work for him. Moreover, the Public Authority of Manpower has stated that employers whose business are suspended must not force their workers to leave on periodic leaves or deduce from their salaries.

3. Is the employer allowed to decrease the worker’s wage?
Article 28 of the labor law forbids decreasing the worker’s wage during the contract, whether the contract’s period is defined or not. Any agreement prior or after the signing of the contract that violates this rule is considered void.
The employer is not allowed to decrease the wage of the worker during the contract’s period, even if such was based on a mutual agreement between the
employer and worker. The article stipulates that any agreement to decrease the worker’s wage is void, as it is a suspicious act.
Nevertheless, some base their views on general rules and see that it is permissible to decrease the wage of a worker during such exceptional circumstances, especially that the employer’s commitments are too great, and
he may be facing huge losses.
Based on Article 198 of the law-decree no. 67 of 1980 issuing the civil law, the judiciary may consider the interests of both parties and lower any exhausting commitment into a reasonable level either by decreasing its size or increasing the return. The employer is not allowed to decrease the wage by himself; it must be done though the court which would consider the interests of both parties. This remains under the discretion of the court which investigates the exceptional circumstances.

4. Is it allowed to consider the period of suspension as a paid leave?
Article 72 states that, “The employer shall have the right to determine the date
of the annual leave and divide such leave after the first 14 days thereof, with the consent of the worker.
The worker shall have the right to accumulate his leave entitlements provided that they do not exceed two years and he shall be entitled to take his accumulated leave all at once subject to the approval of the employer.”
In addition, Article 71 stipulates that, “The worker shall be paid for his annual leave before taking such leave.”
The annual leave is a right of the worker. He shall not waive his annual leave with or without compensation as mentioned in Article 74 of the law. This means that the employer is allowed to reach an agreement with the worker to consider the period of suspension of some of the activities as the worker’s annual leave thus deducting from his leave balance. It should be noted that in this case, the worker has the right to acquire his wage for the suspension period in advance, which may constitute an additional burden to the employer.
In case no agreement was reached, the suspension period must not be deducted from the worker’s leave balance. The worker must not be forced to do so, especially when the current circumstances may affect his ability to enjoy his annual leave. Therefore, this would go against the purpose of giving the worker this right in the first place.

Summary:
Q1: How do the consequences of the Coronavirus affect labor contracts in the private sector from a legal perspective?
1. As per the law, the employer is required to provide safety equipment in the workplace. He is also required to send to quarantine those who are suspected to carry the virus and those who are already infected by the virus.
2. The employer has the right to identify the periods of paid annual leaves for the workers during any time of the year.
3. If the infected worker was given a sick leave, the employer may not dismiss the worker from the job during his leave.
4. As per the labor law, the employer is required to pay the full wages of the workers during the partial/complete suspension of the establishment, except when the employer decides to terminate the services of the worker as per the procedures identified in the law. In this case, the worker is entitled to receive his full entitlements as per law no. 6 of 2010 (3-month notice allowance – end
of service benefit – leave balance allowance – overtime – flight tickets… etc.)
5. The employer is not allowed to force the worked to take an unpaid leave.

5. Is the Coronavirus force majeure or exceptional circumstances that affect the commitments of the parties?

Topic of comparison:

Ability to implement the commitments

 

Exceptional circumstances–Article 198 of the civil law:

Fulfillment is exhausting to the debtor

 

Force majeure – Article 215 of the civil law:  

Fulfillment is impossible:
1. Absolutely impossible
2. Partially impossible


Topic of comparison:

Legal Consequences

 

Exceptional circumstances–Article 198 of the civil law:

During the implementation of contract, unexpected general exceptional circumstances occur.
These circumstances make implementation of the commitments more exhausting.
As a result, the employer may seek the courts to lessen the burden of the commitments; he may request to decrease the wage of the workers to decrease his losses. While implementation of the commitments is not yet “impossible” it is still exhausting. Such threaten the employer and may cause huge losses.
Therefore, the judge may consider the circumstances and look into the interests of both parties and then deem void any agreement that causes exhausting commitments (like what we see in current times when employers force workers to work and decrease their wages in return of not ending their service). The judge can amend the contractual rights and commitments when circumstances change immensely (such as cost + price changes) that could not be foreseen and in a manner that cause unusual huge losses to the employer and were not due to negligence of the workers.

 

Force majeure – Article 215 of the civil law:  

Contract would be terminated by default. In legally binding contracts, when a force majeure situation happens that makes implementing the commitments impossible, such commitments are void and the contract would be terminated by default. If the commitments are partially impossible, the impossible part shall be void. Partial impossibility can be temporal in contracts, and in both cases, the creditor may terminate the contract given that the debtor is aware of such.


Topic of comparison:

Applicability to resident workers

 

Exceptional circumstances–Article 198 of the civil law:

Most likely, provisions of exceptional circumstances will be applied on private contracts for workers in the private sector. This is because according to the governmental resolution, some sectors of the private sector are still in duty.
However, the court has the absolute authority to determine whether the provisions of the exceptional circumstances or force majeure shall apply.

 

Force majeure – Article 215 of the civil law:  

 


info@support.com.kw

 

 

 

< Back