Legal opinion on the exemption of foreigners who are Members of diplomatic, consular and international missions From the application of the Labour Market Regulation Act
Source: Legal Affairs
KINGDOM OF BAHRAIN
DIRECTORATE OF LEGAL AFFAIRS
Note
Legal opinion on the exemption of foreigners who are Members of diplomatic, consular and international missions From the application of the Labour Market Regulation Act
The Directorate of Legal Affairs received the Minister of Labour Arabic letter No. (07/ 05/0179) dated 24th. May 2007, with regard to delivery of legal opinion on the exemption of foreigners who are members of diplomatic, consular and international missions from the application of the Labour Market Regulation Act. The exemption is stated on clause (B-3) of Article (2) of the same Act.
To what extent does this exemption apply to foreigners who are working with diplomatic missions such as, drivers, messengers, workers or family members?
Firstly:
Article (2) (A) of Act No. (19) (2006) with Regard to the Regulation of the Labour Market states:
“Without violation to international treaties in force in the Kingdom, the provisions of this act shall apply to work permits, recruitment (manpower agencies, employment offices and foreign employers’ licenses within the limits stated in this act”
In other words, the application of the Act for the Regulation of the Labour Market is subject to international treaties in force in the Kingdom. The provisions of international treaties shall prevail in case of conflict.
So, any exemptions or exclusions provided for in a dual or multipartite international treaty, shall be applied and prevail over the provisions of the Labour Market Regulation Act.
Secondly:
Article (2) (b) of the Labour Market Regulation Act states:
“The provisions of this Act, shall not apply to the following categories ………..3- foreigners who are members and administrators of the diplomatic, consulate and international missions, within the limits of the mandate of each mission.”
This is a clear provision exempting the members and administrators of diplomatic, consular and international missions form the application of the Labour Market Act.
It is admitted that exemptions are to be strictly applied. It is inappropriate to make any additions or use comparative analogy to extend the range of the excluded categories. Exemptions should be confined to the limits stated in the text, as follows:
- This exemption is limited to the provisions pertaining to employment of foreign workers. Foreigners who are members or administrators of diplomatic, consular or international missions can conduct their works in the Kingdom of Bahrain without obtaining work permits.
However this exemption should not be extended to include licenses for recruitment (manpower) agencies or employment offices.
- This exemption is confined to foreigners who are members and administrators of diplomatic, consular and international missions. The definition of the term “members of diplomatic missions” as stated in Article (1) of Vienna Convention for Diplomatic Relations – Bahrain is a member to this convention by virtue of Amiri Decree No. (6) (1971) – refers to:” The head of the mission and the members of the mission organization” .
The term” mission organization” refers to: “the members of the diplomatic mission, the administrative mission, technical mission and members of the service organization attached to the mission”.
The term Members of the service organization refers to the members of the mission appointed for domestic services of the mission. The term “special servant” as construed by the convention, refers to persons who are employed for domestic services for any members of the mission but is not considered as an employee of the state that sent the mission.
Therefore, this convention did not include the servants of the members of the mission in the definition of the term “members of the mission”.
Vienna Convention with Regard to Consular relations followed the same line and stated the same definition - Bahrain is a member to Vienna Consular Convention by virtue of Decree No. (7) (1992)-.
On the basis of what was mentioned above, the exemption is limited to the following categories: Head and members of the diplomatic, consular and international mission, whether they are diplomats , consular officials, administrators , technicians or other staff employed by the mission like drivers and messengers.
As had been stated earlier, the definition should not be extended by comparative analogy or otherwise. This exemption does not include private domestic servants employed by the members of the mission
- The exemption is limited to work related to the mission mandate. A work permit is obligatory for any foreign employees employed for work not within the mission mandate.
In conclusion, the Directorate of Legal Affairs delivers the following opinion:
Firstly:
The exemption from the application of the provisions of the Labour Market Regulation Act is limited to all persons specifically mentioned in international treaties in force in the Kingdom of Bahrain. This includes members and administrators of diplomatic, consular and international missions working in the Kingdom of Bahrain, within the limits stated in such treaties.
Secondly:
The exemption of the members and administrators of the diplomatic, consular and international missions is limited to the mission mandate. The exemption covers the head and members of the mission including the administrators, technicians, drivers, messengers and domestic servants provided that they are employees of the state which sent the mission.
Thirdly:
The provisions of the Labour Marker Regulation Act, shall apply to the private servants and drivers who are not considered employees of the state which sent the mission in the manner explained earlier.
Directorate of Legal Affairs
Last Update: Thursday 24 May 2007
