Kuwait Court of Cassation principle number 375

Summary: - Private Sector Labour Law No. 6 of 2010. Its provisions apply to the oil sector in matters for which no provision is made in the Oil Sector Labour Law or where the provision therein is more beneficial to the worker. - The provisions of Article (18) of Law 28 of 1969 concerning labour in the oil sector and Article (51) of Private Sector Labour Law No. 6 of 2010. Their import. Kuwaiti workers must be insured with the Public Institution for Social Security. The employer's obligation to pay contributions on behalf of the worker. Calculation of the end-of-service gratuity for workers in the oil sector pursuant to Article (18) of Law 28 of 1969. The employer's obligation pursuant to Article (51) of Labour Law 6 of 2010 to pay the net difference between the amounts it bore for the worker's participation in social insurance and the amounts due as an end-of-service gratuity. Contravention thereof and failure to deduct from the end-of-service gratuity the amounts borne by the company for the worker's participation in insurance. An error requiring partial cassation of the judgment. Rule: The provision in Article Four of Law No. 6 of 2010 concerning labour in the private sector that: "The provisions of this Law shall apply to the oil sector in matters for which no provision is made in the Oil Sector Labour Law, or where the provision in this Law is more beneficial to the worker"; the provision in Article No. 18 of Law 28 of 1969 concerning labour in the oil sector that: "... Upon expiry of the contract term or cancellation by the employer in contracts of indefinite duration, the worker shall be entitled to a gratuity for his period of service for the first five years and the wage of (45) forty-five days for each of the subsequent years. The worker shall be entitled to a gratuity for fractions of a year in proportion to the part thereof spent in work, and the last wage shall be taken as the basis for calculating the gratuity"; and the provision in Article No. 51 of the aforementioned Labour Law No. 6 of 2010 that: "The worker shall be entitled to an end-of-service gratuity as follows: a- .............. b- The provisions of the Social Insurance Law shall be observed in this regard, provided that the employer shall be obliged to pay the net difference between the amounts it bore for the worker's participation in social insurance and the amounts due as an end-of-service gratuity", mean that the legislature required Kuwaiti workers to be insured with the Public Institution for Social Security and obliged the employer to pay contributions on behalf of the worker pursuant to Articles Nos. 188, 83, 82, 11 of Law No. 61 of 1976 and its amendments. The end-of-service gratuity for Kuwaiti workers in the oil sector is calculated on the basis set out in Article 18 of Law No. 28 of 1969 (referred to above), and the employer is obliged under Article 51 of Labour Law No. 6 of 2010 to pay the Kuwaiti worker the net difference between the amounts it bore for the worker's participation in social insurance and the amounts due as an end-of-service gratuity. As the challenged judgment departed from this view, failed to give effect to the rule contained in the aforementioned Article, and did not deduct from the respondent's end-of-service gratuity entitlement under the Oil Sector Labour Law the amounts borne by the appellant company for his participation in social insurance, it must be partially quashed in this respect on this ground.