LABOR RELATED ISSUES
A. obtaining a Free-Lance Visa in Kuwait * (Date published: 02 June 2002)
Question: I am about to finish my 2-year contract as domestic helper and planning to work outside residence under visa 18. After the expiration of my contract, I wanted to know if I could possibly take a free-lance visa. Can I also get my money and plane ticket from my employer without returning back to the Philippines. Please advise me, as I still wanted to continue working in Kuwait for my children’s sake.
Mrs. J. Infante
Answer: I regret to inform you that your question is not within the scope of “Shariá Legal Notes for OFWs”. However, per our information you could not possibly take a “free-lance visa, as such visa does not exist in Kuwait (Decree Law No. 7/1959, On the Residence of the Aliens as well as Amending Laws and Minister of Interior’s Order No. 640/1987). Meanwhile, you can take your money and plane ticket from your employer and return to the Philippines. As you wanted to continue working in Kuwait for your children sake, you have two (2) options immediately after the expiration of your 2-year contract. First, convince your new employer if you have already contacted one, to apply for you a visa 18 and pick up the said visa outside Kuwait. Second, request your old employer to transfer your visa 20 to 18, if he owns a company or establishment under his name. In this case, there is no transfer of employer, except the transfer of visa category and work station. (Tomara M. Ayo, Answers to Questions Frequently Asked on Immigration and Labor Laws and Advisory to Expatriates in Kuwait, Part 1). You may also wish to inquire from a local lawyer for this purpose.
* Published under writer’s pen name
B. Delay and/or Immediate Release of WORKERS’ Salaries* (Date published: 16 June 2002)
Question: Our employer is a very religious person, but she is very unreligious when it comes to the payment of our salaries. She used to delay our salaries from a week to a month. She knows that it is un-Islamic and we know too, that she can promptly pay or release our salaries, if she likes to do it. We do not want to take legal action against her because she is very kind and understanding to us. Please advise us on how we can indirectly complain without hampering our smooth relations.
Group of Five, Salmiya Saloon
Answer: You were right for not taking legal action against your employer because your problem is resolvable by extra-legal remedy. Bringing your problem to the court will only strain, if not hamper your harmonious relations. Since your employer is a religious person, you may try discussing the matter with her through Islamic diplomacy. I mean, put the issue within the Islamic concept of employer-employee relations. I believe that she knows very well that the employer is supposed to promptly, if not, timely release the salaries of an employee under Shariá law. For your reference, you may invoke the Hadith, which narrates that Prophet Mohammad, upon whom be peace, emphasized before the employers to release the salaries of their employees before the latter’s perspiration or sweat dries up. If your employer is indeed a religious person as presented, I am certain that through this approach she would stop from delaying your salaries, otherwise she must have other reasons for doing it, either for her business protection or personal interest. Nevertheless, you may also refer to your employment contract as regards the release of your salaries.
* Published under writer’s pen name
C. PROTECTION OF DOMESTIC HELPERS UNDER PHILIPPINE LABOR LAWS (Date published: 14 July 2002)
Question: In one of your issues in PANORAMA, you have discussed the ideal relationship between the employer and employee under Shariá or Islamic law. However I wanted to know if such relationship is likewise emphasized under our labor law, I am already 7 months in Kuwait with a Lebanese employer, but due to maltreatment I am receiving daily from his children I have decided to run away, along with other Asian DHs. My question is, can I possibly terminate our contract before its expiration date?
Answer: Your question is not within the domain of this Column. However, I know for a fact that our labor law is super protective as regards the welfare of our OFWs. In your case you can invoke no. 15 (b) of DOLE’s standard employment contract for DHs bound for Kuwait, to be able to terminate your contract. Under this provision, ??”you may terminate your Employment Contract for any of the following causes: mistreatment or maltreatment by your employer or any member of his/her household, your employer violates the terms and condition of the Employment Contract, your employer commits any of the following: non-payment of your salary, sexual molestation and physical assault. In effect thereof, your Employer shall pay for your repatriation”. However, notwithstanding the above-cited provision, I suggest that you contact and seek the advice of Atty. Vivo V. Vidal, Acting Labor Attaché of the Philippine Embassy before you run away from your employer’s residence. You can reach him at telephone numbers: 5347901/5346507/5346508. Good luck!
D. SUICIDE AND DEATH BENEFITS (Date published: 06 October 2002)
Question: I am a technician in an oil Company in Kuwait & converted to Islam since 1990. Due to very personal problem, I have attempted many times to commit suicide, as I could no longer bear this problem. In case I succeeded, are my children entitled to my death benefits? I know it is “haram” or illegal to commit suicide under Islamic law that is why I asked this question? My Muslim co-workers are advising me and I hope you can advise me too.
Answer: I wish I can meet you in person before your next attempt, but please do not entertain the idea of committing suicide as a solution to your very personal problem. Meanwhile, your children are entitled to death benefits in case you die (Kuwait Labor Law). But, if you ask your children, they will rather see you alive even penniless than reluctantly enjoy the money they will get as a fruit of your suicidal tripping. Most importantly as a Muslim, the crime of murder likewise applies to suicide, therefore as if you are a murderer (The Lawful and the Prohibited in Islam. Yusuf Al-Qaradawi). Whoever takes his life by any means has unjustly taken a life, which God has made sacred (4:29, The Holy Qur’an). Since we did not create ourselves it follows that our lives do not belong to us, but to Almighty God. Shariá or Islamic jurisprudence requires every Muslim to be resolute in facing problems. A Muslim is not supposed to run away from the difficulties of life when a tragedy befalls or some of his hopes are dashed. A believer is created for striving, not for sitting idle, for combat and not for escaping the challenges in life. Lastly, I wish to share you this Hadith, as follow: “He who throws himself down from a rock to commit suicide will be throwing himself into the fire of hell. He who drinks a poison to kill himself will have that poison in his hand drinking it forever in the fire of hell. And he who kills himself with a weapon will have that weapon in his hand, stabbing himself forever in the fire of hell.”
E. INFLUENCE OF SHARI’A ON IMMIGRATION CASES AND IGNORANCE OF LAW (Date published: 13 October 2002)
Question: In view of a civil law stipulation that “ignorance of the law excuses no one from compliance therewith”, I want to play safe by asking the following: 1. Can I demand a release paper from my employer? 2. If he refuses, what should I do? 3. What are the legal procedures to acquire a transferable visa? 4. What is an Article 18 visa? 5. Where can I buy books about Kuwait Labor Laws and Shariá Law, both in the English texts?
Answer: While Shariá is Kuwait’s principal source of legislation (Article 2, Kuwait’s Constitution), your questions are mostly not covered by this Column. They are immigration problems, which have something to do with visas. At any rate, Shariá jurisprudence likewise obliges every individual to abide with the existing laws. One’s ignorance of law is not a valid defense for not performing a duty or from committing an evil act. As regards your questions, please be informed that: Firstly, you cannot demand a release paper from your employer the latter being your sponsor in the host country. Perhaps you can request, but definitely you cannot demand, unless you have valid reasons to do so. Secondly, if he refused to give you a release paper, you can either bring the matter to the attention of the Ministry of Social Affairs and Labor or continue working with him until the expiration of your employment contract. Thirdly, visas as a rule are not transferable unless the employer releases his/her employee. However, you have to be specific with your current visa category, as visa category varies on matters of transfer. Fourthly, Article 18 visa refers to visa issued to expatriates working in the private sector. Fifthly, Kuwait Labor Laws in the English text are available in the bookstores in Kuwait City. On Shariá law books, the Holy Qur’an and Hadith are its principal sources. And these are obtainable from the Islam Presentation Committee in Kuwait City. If you wish, I can provide you an English copy of the translation of the meaning of the Holy Qur’an.
F. GRANT OF RAMADHAN TIME AND INVOKING IT AS ONE’S EXCUSE TO PERFORM A DUTY (Date published: 03 November 2002)
Question: I am a visa 18 OFW. Every Ramadhan our Company supervisor is very lenient to my co-workers who are fasting, especially on matters of time. Although, non-fasting employees enjoy the same working hours, I wanted to know whether there is a prescribed Ramadhan time under Shariá law. Please let me know through your column in the Filipino Panorama. Thank you.
Answer: I feel that your Company supervisor’s leniency to your co-workers who are fasting is personal in nature. Obviously, it is a gesture of mercifulness and sympathy in view of the hunger and series of prayers being practiced by your Muslim co-workers during the holy month of Ramadhan. However, since you and others are enjoying the same working hours along with your Muslim peers, I am of the belief that it is to you and others’ interest that you don’t make a fuss out of your supervisor’s leniency on working hours during Ramadhan. The matter is left to the discretion of the employer in accordance with the existing rules and regulations. But in the Philippines, Shariá law is very specific on the matter. Muslim employees are allowed to report to work from 7:30 in the morning to 3:30 in the afternoon, without noon break or a total of 8 working hours a day. Meanwhile, in respect and cooperation with the Kuwait Government, I have learned that the Philippine Embassy working hours for Ramadhan is from 10:00 in the morning to 3:00 in the afternoon without noon break. Moreover, you may wish to know that the holy month of Ramadhan or in practice thereof, is not an excuse for one’s weaknesses to the prejudice of others.
G. OBSERVANCE OF MUSLIM DRESS CODE AT WORKPLACE (Date published: 24 November 2002)
Question: We are visa 18 OFWs. We arrived in Kuwait few weeks before Ramadhan. Our problem started when our employer told us to observe a Muslim dress code for women. He wanted us to cover our head with scarf and wear a loose black dress during working hours. Lately, he threatened to terminate us if we continue to defy his order. Our questions are: 1.) Can he terminate us for this reason, and 2.) Can you please let us know about the so-called dress code under Shariá law because I know that many Muslim women are not also covering their heads with scarves.
Mary & Jane
Answer: Legally, your employer cannot terminate you for not observing the so-called Muslim dress code, because Shariá law on this matter is meant only for Muslims and I understand that both of you are non-Muslims. However, since your employment status is still under probation, your employer may invoke the probationary clause in your employment contract, which means that he can easily find ways to sack you, not necessarily for reasons of "dress code". You may also review your signed contract, as it may yield a special provision requiring you to comply with the dress code. If I may add, you may further wish to consider that the imposition of dress code is not only because of religious consideration, but it could be due to the nature of your work or for security reasons, seeing to it that with the dress code you can avoid unnecessary harm from the opposite sex. As expatriates, the culture of this country is likewise something that you are supposed to consider. Frankly, I am of the belief that it is to your advantage that you observe the dress code, while sorting out this matter with your employer. You may ventilate your uneasiness with the dress code with your employer in a diplomatic manner. I think he can understand your reason, if you discuss it with him in a constructive way. Moreover, I am pleased to inform you that under Shariá law, it is haram or unlawful for Muslim women to wear clothes, which fail to cover their bodies or which transparent their curves revealing what is underneath. Fitting clothes delineating the parts of the body, especially the sexually attractive parts are likewise prohibited. In this regard, Shariá jurisprudence pointed out the protective feature of Islam as a measure in maintaining peace and order in an Islamic society. Through the dress code, it hopes to avoid unnecessary seduction and temptation. You are right many Muslim women are not observing the dress code they are supposed to observe, but you cannot serve them as gauge or model in the application of Shariá law, as they have problem too, in the eyes of God, law and society. Maybe, their problems are bigger than yours.
H. RIGHTS OF A “QADAMA” OR SERVANT (Date published: 12 January 2003)
Question: I am a Visa 20 OFW, and fortunate that my employer is a very kind person. However, I am bothered when my employer’s daughter who is of my age told me that my visa as a “qadama” is literally means “slave or servant” and therefore my rights against my employer or master is very limited. Is this true?” Is there no way of changing my visa from qadama or servant to housemaid or domestic helper?
Answer: It is not true that you have very limited rights against your employer. Remember that the law protects everyone regardless of his or her social status. As expatriate, your employment contract is your bible in case of problem or dispute with your employer, but since your employer is very kind person I believe that you have nothing to worry about. Meanwhile, it is very unfortunate that “qadama” or servant, which is a pre-Islamic language is still being used to connote a housemaid or domestic helper although the outdated servant-master relations are no longer practiced nowadays. I regret that there is no way by which your qadama or servant visa can be changed to domestic helper or housemaid, unless the laws are amended. I think your concern has to be addressed on a government-to-government level, I am of the opinion that the word “qadama” or servant sounds unpleasant. However, in this country it is only a matter of designation, and perhaps your volume or kind of work will not improve or reduce in any manner even if your visa is changed to domestic helper or housemaid. For the moment, you have to be patient until such a time that concerned authorities have realized and addressed your problem.
I. HAJJ JOURNEY (Date published: 09 February 2003)
Question: I am a Civil Engineer and new convert to Islam. One private organization in Kuwait offered me a Hajj journey to Saudi Arabia, but when I informed my employer about the offer and applied for a leave of absence he immediately turned down my application for leave of absence saying, Hajj is purely a personal matter, which is not covered by our employment contract. Since I am a new Muslim, I did not make a fuss. Is my employer right” What is the essence of Hajj to a new Muslim?
Engr. A. BC
Answer: Your employer is right. Hajj journey to Saudi Arabia is purely a private endeavor, unless it is expressly stated in your employment contract that binds your employer. In this regard, you may wish to know that although Hajj is one of the important pillars of Islam, Shariá jurisprudence did not make it a mandatory to those who cannot afford it, in terms of financial, physical and circumstantial aspects. To a new Muslim, the application is the same. However, it is important that you understand what you are performing with. Hajj is the pilgrimage to Ka’bah, mosque in Makkah and nearby Mount Arafat, during the 8th to the 13th of the month of Dhul Hijjah, the twelfth month of Islamic calendar. All Muslims are required to try to perform this duty once in their lifetime, provided they have the means to do so, and are physically and mentally fit. Their funds must be honestly earned, and they should not be in debt and their dependents should be cared for in their absence. These moral principles are important. A Muslim who behaved unscrupulously, dishonestly, ruthlessly in order to claim for himself or herself the benefit of Hajj would actually invalidate his or her hajj (A Basic Dictionary of Islam, Ruqaiyyah Waris Maqsood). Along this line, your decision is correct otherwise your Hajj is invalid.