The Kuwaiti government has been keen on developing the country and has therefore signed major projects in the past few years (some of which are near completion), like new museums, an international airport, major highways and an opera house, just to name a few. And yes, on the contrary, there have been a few projects that were put on hold because of issues such as the drop in oil prices. Therefore, it is only logical that a large number of contractors/workers are entering and exiting the country since the past few years, and their situation has created legal concerns for government companies and workers alike, causing regulations to keep changing, that even we lawyers are only figuring out with time and experience.
A contractor in simple terms is an employee working for a company that is working on a project for the government sector. Therefore, even though I have written about contractors before, I would like to take the time to answer major questions again.
Question: I was brought into Kuwait to work on a certain project. How do I know if I am working in the private sector or governmental sector?
Fajer: You have to check your visa number. I understand that contractors are in a unique position as they are working for a private company that is doing work for the government. Sometimes, you could be working for the company and just doing work for the government (article 18), or you could have been hired specifically for the project (article 17).
Question: Am I entitled to termination indemnity? I have heard from different people that contractors are not entitled to any termination indemnity. Is this true?
Fajer: If you are on article 17, then it is best to check your contract as you are probably awarded a lump sum as end of service benefit or maybe nothing at all, as you might have been brought it in for a short period of time. Please check your contract.
Something that I would like to make clear, as there has been a shift in recent court decisions – your chances of getting termination indemnity under Kuwaiti law for those working under Article 18 for a government project are lesser if you are not receiving your salary through a Kuwaiti bank account.
Question: I am currently on article 17 and I want to transfer to article 18 once the project is over – is this possible? From my understanding, transfers are no longer available.
Fajer: Before I go ahead and answer, I just want to make it clear that it is not easy writing about visa regulations, as the regulations themselves are not easy to grasp and keep changing on a regular basis.
As you may have already heard, the regulations for transferring visas in Kuwait are getting stricter, but this does not mean that transfers are not available. As of now, there are three possible ways for a transfer:
1. If the company the contractor wants to transfer to is owned by the same owner the company he or she is currently working on, regardless if the new job is for a government contract or not. Here is a hypothetical example to make it easier for the readers to understand – you are currently working for company X that is building a spaceship for the Kuwait government. After building the spaceship, a sister company of company X offers you a job position as a salesman for a store they own. You could get a transfer.
2. If you are transferring to another job position for a government contract, then you can do so if your current employer approves and signs a document for transfer that is available at the Ministry of Social Affairs and Labor.
3. If you entered Kuwait to work for the private sector, then you transferred to a government contract visa, you can retransfer back to the private sector regardless of your job. Example, you came to Kuwait to work as a clerk for a store and then transferred to work for the government to help build a museum, you can then transfer back to work as a waiter (please note that these examples are extremely hypothetical and are just there to help you understand the situation better).
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By Attorney Fajer Ahmed