The labour law legislation of the KSA has brought some workers in government and public organizations and institutions, including those who work in pastures or agriculture, within the scope of the provisions of Saudi labour law since the second labour law was issued in 1969. The current Saudi Labour Law of 2005 has taken the same direction, in accordance with Article 5, paragraph 2:
The provisions of this Law shall apply to:
(2) Workers of the government and public organizations and institutions including those who work in pastures or agriculture.191
Therefore, it is important to make a distinction between workers of the state and public institutions who are designated to one of the occupations of public authority in the kingdom, and who are therefore subject to the application of the provisions of the Civil Service Act in the KSA, and between workers of the government, bodies and government institutions who are subject to the provisions of the Saudi Labour Law of 2005. This distinction between them will now be explained.
<http://www.egypt.gov.eg/arabic/laws/labour/Law_12/F_worklow_law12.aspx> (Translation with author); Art 31 of Egyptian Labour Law, defined the individual employment contract as follows „The contract whereby the worker pledges to work with the employer and under his direction or supervision for a fee‟.
187Muhammad Banany, Legislation of the Individual Labour Contract in Arab Countries (Arab Labour Legislation, 1993) 28.
188
Muhammad Mansour, Labour Law (Halaby Legal Publication, 2010) 474.
189 Egyptian Labour Law , above n 185, art 152. It provided that 'The Collective Labour contract that is the agreement regulating the terms and conditions of employment and the provisions of the employment, is made between the trade union organization or more organizations and the employer or a group of them, organization, or more than their organizations'.
190Kuwaiti Labour Law No. 6 of 2010 (State of Kuwait)
<http://www.gcc-legal.org/BrowseLawOption.aspx?country=1&LawID=3635> (Translation with author); It provided that in art 111"collective labour contract is the contract governing the terms and conditions of labour between the union or workers union or more and the employer or more or their representatives of employers' associations".
54
3.3.2.1 The public employee or employees of the state and public institutions
“Public employee” or “public servant” refers to employees who are appointed to work permanently in a government job or to serve in public facilities owned by the state or any person in public law.192 The jurists of administrative law require an essential element to be met in order to consider a person as a public employee: i.e., that the position occupied by the person is a permanent job, not of temporary duration or limited to a particular purpose. In addition, the post should belong to a government or public institution which is run by the state or any person in public law. Finally, to issue a decision on the appointment, a competent employee in the public service must make the decision of appointment.193
When the preceding elements are part of the job, the person is considered a public servant and, therefore, is not subject to the scope of the application of the provisions of labour law of 2005 but, instead, is subject to the scope of the application of the provisions of the Civil Service Act in the KSA.194 The Board of Grievances in the KSA is specialized in all administrative disputes, including disputes arising from the application of the civil service law; however, this is outside of the scope of this thesis, and falls under administrative law. 3.3.2.2 Workers in government bodies and public institutions
Current Saudi Labour Law is criticized for not specifically defining what is meant by government workers who fall under the provisions of the Saudi Labour Law of 2005 in accordance with Article 5, paragraph 2. However, despite this, jurists of labour law in the KSA have agreed that what is meant by workers in government and public institutions is all persons who work under a fixed-term labour contract (not under administrative decision by appointment) in running a public facility owned by the state or work in a government project that is implemented directly by the government or public institutions.195 This concept includes workers in public institutions and administrative and local bodies who are appointed on what is called the wages item in the state budget in the KSA. They have relied on the definition decided upon by the Council of Ministers No. 837, in 1977 regarding what is meant by “workers of the government and a public institution”:
They are employees who carry out labour-intensive actions for the government and administrative bodies such as carpenters, electricians, mechanics and others such as porters, cleaners in the municipalities, excavation workers and transport workers.196
From the above it could be said that the reason for the submission and inclusion of the workers of government, agencies and public institutions under the provisions of Saudi Labour Law is the fact that their relationship with the government or public institutions is a
192Jaber Abo-Zeed, Administrative Law in Kingdom of Saudi Arabia (Dar Hafez for Publication, 2006) 43. 193 Abdel-Mohsen Rayan, The Principle of Saudi Administrative Law (Dar Hafez for Publication, 3th ed, 2008) 14-15.
194Civil Service Law (Saudi Arabia), Royal Decree No. M / 49 (10 Rajab 1397 H – 27 June 1977). 195
Al-Kialy, above n 16, 58.
55
temporary contractual relationship and not a functional relationship.197 So, in the KSA, they are called workers and not employees, while the relationship of the employees of government and public institutions is a functional relationship; therefore, they are subject to the civil service act or to the laws of public institutions in which they serve. Some examples of these are the police and military personnel and the National Guard. They are not subject to the provisions of Saudi Labour Law and Civil Service Law but they are subject to private regulations for military personnel.
In fact, it may be argued that Saudi Labour Law differs from most labour laws in the countries of the GCC and the neighbouring Arab states of the KSA which have exempted "all" workers in government agencies from being subject to the application of the provisions of labour law. Instead, such workers are subjected to special regulations for state employees that fall under administrative law. For example, as stipulated in Article 3, paragraph 1 of the UAE labour law of 1980198 or in Article 4 of the Egyptian Labour Law of 2003.199
It should be mentioned here that there is considerable debate about the application of the provisions of Saudi Labour Law to some workers in government and public bodies and institutions in the KSA. Should it be considered as a positive or negative feature of Saudi Labour Law? According to Dr Al-Kialy, who supports the notion that workers of the government, in agencies and public institutions should be included within the scope of the labour law, this will be highly significant. They will benefit from the advantages of the labour law and it will ensure the future of workers employed by the government and public institutions.200 Also, Dr. Abdelmegeed argues that this submission is a good idea and is one advantage of the labour law in the KSA.201
However, there is another point of view which sees that the submission of some government workers to the labour law is not to their advantage and that their submission to the civil service system is better for them and has no disadvantages. Dr Elias argues that the exclusion of workers in the GCC government, institutions and government agencies from the terms and conditions of labour law is better than their submission to the provisions of labour law as is the case in the KSA. He argues that the relationship between the State and the employees of the State, either as government workers or workers in public institutions, is an organizational relationship in practice, even if it is temporary and not a contractual relationship as is the case between workers and employers in the private sector. Thus, it is better for the worker in terms of rights and obligations to be in an organized relationship and to be subject to the same
197
Fakhry, above n 155, 294
198United Arab Emirates Labour Law, above n 185, art 3/1. It Provided that 'The provisions of this. law shall not apply to the following categories A - Workers and employees of the federal government and workers in government departments in the UAE'; H Ahwani and R Mabrouk, The Mediator in the Labour Law of the United Arab Emirates No. 8 for the Year 1980 and its Amendments (United Arab Emirates University, 2000) 24. 199Egyptian Labour Law , above n 186, art 4. It Provided that "The provisions of this law shall not apply to workers in the government, including units of local administration and public bodies"; Ramadan Kamel,
Explanation of the New Egyptian Labour Law No 12 of 2003 (National Centre for Legal Publications in Cairo, 5th ed, 2008) 53.
200
Al-Kialy, above n 16, 58. 201Abdelmegeed, above n 39, 10.
56
regulations that state workers enjoy within the rules of administrative law, rules that may be unknown in the contractual relationship. There is no such preference in the case of submission to labour law.202
It could be supported that the position not to include government workers under the provisions of the labour law is the reason that submission of government workers to labour law has several deleterious effects. One of the most important of these is that workers in government and public institutions do not have the same rights as do the state workers in the KSA. This happens because two workers can be in government institutions and both perform the same work but with a different name and one is appointed by an administrative decision, and hence is considered an employee of the state and consequently is subject to the provisions of the civil service law in the KSA, while the other is appointed under a contract under the wages list and consequently is subject to the provisions of Saudi Labour Law. This ambivalence in the submission of some state employees to the provisions of the civil service law and the submission of some government workers and workers in public institutions to the provisions of the labour system has led to complaints and disputes as the government administration in public institutions is unable, in practice, to give these groups their lawful rights, according to the labour law, for several reasons. The most important of these reasons is the bureaucracy of government institutions. The various complaints and disputes filed by government employees against government institutions to claim their rights provided for in the labour law supports the previous point of view. An example of this is the proceedings raised against a public university before PCSLDs in the KSA by a number of workers at the university who fall within the categories of government workers and public institutions provided for in Article 5, paragraph 2 in Saudi Labour Law of 2005. The subject of the dispute included the workers' appeal to the university to give them their financial rights according to the labour law in the KSA, since the university had appointed them on temporary contracts and some of them had worked for more than ten years yet were still deprived of many of the rights stipulated in Saudi Labour law.203
Therefore, in accordance with the above, it could be suggested that all government workers and workers in organizations and government agencies should be exempted from the application of the provisions of Saudi Labour law and they should be subject to the provisions of the Civil Service Law, as is the case in most of the GCC and Arab countries. 3.3.3 Charity workers
In accordance with the provisions of Article 5, paragraph 3 of the above-mentioned Saudi Labour Law of 2005,204 Saudi Labour Law applies to all workers in charitable institutions. Charitable institutions are those institutions that offer services free of charge and do not
202Elias, above n 3, 41.
203Saud Al-Barkati,'Labour Commission Limits Workers Demands in King Abdul-Aziz University', Okaz Newspaper (Jeddah) 11 August 2009, 5.
57 intend to make a profit.
It can be argued that the intent of the Saudi legislation in having the explicit provision in the third paragraph of Article 5 requiring the submission of charity workers to the provisions of the labour law is just to emphasize that this does not require that the business or the employer intends to make a profit. In addition, this emphasizes that workers in charitable institutions in the KSA are subject to the provisions of Saudi Labour Law, regardless of the owner of the charity.