New reforms and ongoing challenges in Saudi’s labour justice system
Saudi Arabia has implemented a slew of reforms to its complaints mechanisms in recent years, including establishing labour courts and bringing many of its services online. But obstacles to justice persist for many workers, who lack clear information on procedures and rights and little access to support.
Lily*, a Filipina domestic worker, arrived in Saudi at the end of February. Her employer abused her, sexually harassed her, and refused to pay her salaries. The Covid-19 lockdown exacerbated her troubles; as soon as the lockdown eased, she escaped her employer’s house and found shelter with a Filipino family. But her employer had confiscated her passport and iqama (residence permit) and filed a ‘huroob’ (absconding) complaint against her.
Migrant workers in Saudi Arabia lack access to reliable information, especially on justice and redress. When telling her story, Lily is full of questions: What is her legal status? What is the legal process to get her documents back? Can she transfer sponsorship? Can she request her owed salaries? Where can she file a complaint? Turning to the internet provided little help.
The Ministry of Human Resources and Social Development (MHRSD) is partly to blame. Part of the MHRSD’s mandate is to create a safe and attractive labour market in Saudi. Yet, its awareness campaigns are not effective. Its website does not carry complete information about services offered at its local branches, known as Labour Offices (LOs). It also does not provide clear guidelines on how to use the MHRSD's online portal or app. For example, there is no information on how to file a labour dispute, lodge a complaint about passport and iqama confiscation, report an abusive employer or appeal a huroob case.
Workers who manage to succeed in filing a case at the LO or online are often unsure about follow up procedures and timelines.
The government’s discriminatory policies are also at fault, as migrants develop a strong distrust in a system that favours Saudi employers over non-Saudi workers. Not only are the kafala, residency and labour laws inherently exploitative, but workers' experiences with everyday abuses reinforces that confrontation does not lead to justice. Confiscating passports and iqamas, and weaponising huroob complaints against those who speak up, serve as reminders that the sponsor is in total control. Some employers even force workers to sign or stamp their fingerprint on blank promissory notes to use as leverage against them in case they lodge a complaint.
Most migrants rely heavily on community networks of compatriots or coworkers for guidance. Others rely on their embassies for information. While those sources are valuable, they are at best speculative and at worst inefficient.
Regrettably, many migrants also rely on their employer’s HR departments for information. In several cases documented by MR, HR departments provided false information intermingled with threats. Afzal, a Pakistani mechanic, was never put to work or paid since his arrival in Saudi in February 2020. His HR manager told him that he is not owed any wages, a clear violation of his contract and the Saudi Labour Law. The manager threatened that the kafeel would “ruin him,” as he has a copy of his signature if he filed a complaint.
“If you are not an Arabic speaker, strong-willed and assertive, I am not sure you can manoeuvre here.”
Covid-19 has aggravated the information crisis even further; with closures, curfews, and implementation of an ad-hoc force majeure ruling, questions remain unanswered about adjusted pay, contract termination and huroob cases. Many workers were unsure about the legality of working longer hours for a fraction of their contracted salaries but had nowhere to go to find answers. Others had their appointments at the LOs, or the Labour Courts, postponed until the quarantine is over.
The MHRSD website features a labour education section, but its content is almost a verbatim copy from the Labour Law, mostly in Arabic, and primarily geared towards employers. The website has a portal to submit a consultation request, but it does not appear functional. The MHRSD's social media accounts are active and very responsive to questions but their answers focus mainly on technical issues related to their portal and app. In 2014, the MHRSD launched a hotline in nine languages to help workers “file complaints and answer questions and concerns.” Yet, according to Bilal, a Pakistani worker who tried to call them during the pandemic, the number only offers services in Arabic.
The MHRSD’s labour offices do provide information but accessing them requires freedom of movement and leisure time during business hours, which many migrants do not have. The online portal allows workers to choose their native language when filing a dispute, but it is unclear if LOs provide translation services during the hearing. Workers told MR that LOs carry some minimal brochures and signage in multiple languages that explain some procedures.
At least eight workers MR spoke to were not familiar with the legal mechanisms to file a labour dispute or to inquire about their legal status. Ahmad, an Egyptian worker who ran into problems with his sponsor, told MR “I do not know how to articulate my issues.” This statement is echoed by many others who lack knowledge of relevant laws and are unable to find answers from government agencies’ websites, social media accounts, hotlines or brick-and-mortar locations.
Reflecting on a visit to his local LO, an Egyptian engineer told MR: “If you are not an Arabic speaker, strong-willed and assertive, I am not sure you can manoeuvre here.” Experiences vary by location, LO personnel, and the worker’s case, class, language and origin. There is a perception among some migrants we spoke to that many LO employees, especially in smaller cities, are themselves either uninformed or lack the training necessary to carry out their duties, especially regarding new laws or decisions.
Filing a complaint without knowing Arabic is not an easy task. A Pakistani worker told MR that he tried to file a labour dispute against his employer, who hasn’t paid him for five months, through the English interface of the MHRSD portal. After he entered his personal data and other relevant information, he was prompted with only Arabic pages and was unable to submit his complaint. He eventually hired an agent to file for him. He also required the embassy’s help throughout the amicable settlement process. Without the agent and the embassy, he said, he would not have been able to proceed.
Hailed as a great step towards reforming the labour market, Saudi Labour Courts began taking cases on 25 November 2018. MHRSD detectives previously adjudicated disputes that arise under the Labour Law in LOs, but now most disputes fall under the purview of the fully-digitized Labour Courts overseen by expert judges appointed by the Ministry of Justice. Notably, Labour Courts do not rule on sponsorship-related cases, such as transfer of sponsorship or huroob complaints. Such cases remain under the purview of LOs, though Labour Courts can issue non-binding recommendations on sponsorship transfer.
Under this new system, employees still have to file a dispute with the MHRSD first via LOs or the online portal. At least two hearings will take place at the LOs with the objective of amicable settlement before the case is escalated to the Labour Courts. Although the new system stipulates that cases cannot remain in the amicable settlement phase for more than 21 days, many cases take a few months before being transferred to the Labour Court.
MR spoke to some of the workers who experienced both the old and the new system. They praised the Labour Courts, saying that judges tend to be fairer than MHRSD detectives. But it remains challenging to assess whether the new system has improved migrant workers’ access to the labour justice system. The Labour Courts and the MHRSD do not provide statistics on the number of cases received disaggregated by nationality, occupation or gender. All the workers MR spoke to who succeeded in bringing their cases to the Labour Courts were well-educated and fluent in Arabic.
Irregular migrant workers can, in theory, file a dispute in LOs; a worker with an expired iqama can lodge a complaint against the sponsor to renew an iqama and appeal huroob cases, although no one MR spoke with succeeded in lifting these charges. Besides not realising they can file an appeal, irregular workers are likely to be wary of approaching officials in fear of arrest and detention.
Covid-19 setbacks and innovations
Saeed, an Egyptian doctor, won his case at the Labour Court on 2 March 2020. His hospital shut down due to a violation of the Ministry of Health’s rules in 2019. When that happened, he was owed at least SR180,000 (approximately USD 50,000) in past-due payments (not including any compensation for arbitrary termination of contract). Still under his employer's sponsorship, Saeed could not work anywhere else legally for several months. The decision in his favour came just in time. His sponsor, however, appealed the verdict and soon after, Saudi suspended most government work due to Covid-19, including LOs and courts. Ongoing labour disputes, such as Saeed’s, were put on hold. Filing new cases in person was out of the question, while, according to various workers, the online portal was down regularly during the pandemic.
At the peak of the Covid-19 outbreak and mandatory curfews, Saeed, who was stranded in the country with no income and little food, developed suicidal thoughts. Luckily, he survived the worst of the pandemic. However, the appeal court has still not assigned his case a date.
Sara, a Sudanese doctor, was fired from her job during the post-probation period. She never received any wages, and as such is entitled to compensation for wrongful termination. Her hospital said it will not object to her transferring sponsorship as long as she relinquishes all monetary dues. Refusing to accept these terms, Sara filed a case with her local LO, but could not resolve the issue amicably. Her case was transferred to the Labour Court. Pregnant and without health insurance, her worries were multiplied as the pandemic hit. Her case was also put on hold.
The disruptions to normal life at the peak of the pandemic are understandable. However, it is important to note how the vulnerabilities created by the abusive kafala system exacerbated the situation for both Saeed and Sara. Had both been allowed to transfer sponsorship without the approval for their sponsor, they most likely would have found jobs. In fact, Saeed had a potential employer willing to hire him if he has been able to transfer sponsorships. Had both been allowed to leave the country, they would have done so. Saudi Arabia remains the only country in the Gulf to require employees to obtain approval from the sponsor to exit the country.
By mid-June, as the government began easing restrictions, LOs and the courts were back in operation.
Before Covid-19, LOs were open to everyone. However, to limit the number of visitors, LOs now require an appointment through the MHRSD portal. Accessing the portal requires an active Absher account. Those with huroob cases, or those whose sponsors had never issued an iqama to them, are not able to register.
“...the fact that the majority of cases do not reach the justice system signals a failure on the part of the MHRSD and other relevant government agencies.”
Mahmud, an Egyptian analyst who registered for an appointment in mid-July, said that the first available appointment he found was five days away. When he arrived, he had no trouble accessing the LO, but he noticed that Saudis were allowed to enter without needing to show proof of an appointment. Non-Saudis, meanwhile, were not allowed to enter without one and were told to come back the next day. Once inside, filing a case was quicker on average since the number of visitors is restricted.
The MHRSD has transitioned to an all-virtual system for its amicable settlement sessions. Similarly, all Labour Court proceedings are now conducted virtually.
The plaintiff and defendants receive a text message with a WebEx link alongside the session’s date and time. Attending the session requires internet connectivity and the WebEx App (or a browser if using a laptop).
Each MHRSD session lasts 20 minutes. If the plaintiff fails to show up in the first session, he or she has to refile their case. If the defendant does not show up in the first session, a second session is scheduled. If the defendant does not show up twice, or if no settlement is reached, the case is then transferred to the Labour Court.
Being a new system, rolled out in a time of crisis without beta testing, it is rife with errors and arbitrary changes. Mahmud’s original date for his first session was in mid-August. On 26 July, he received a text message stating that his session date has changed to 27 July, giving him only 24 hours to prepare. Sara received a text message informing her that the Labour Court received her case and she is required to log in to Najiz, the Ministry of Justice web portal, and file a case, to confirm she is still pursuing it. She did, but the system informed her a few days later that she did not. She had to confirm her case again, postponing the court date a few days due to technical glitches.
Notwithstanding the new system’s shortcomings, it offers flexibility and transparency. For Mahmud, the online sessions were a relief. Though he lives in Yanbu, his company’s registered address is in Riyadh, meaning he is required to file his case in an LO in Riyadh. In the past, he would have had to physically attend the sessions in Riyadh instead of from the convenience of his home. Mahmud also felt that the virtual nature of the meeting gave it a sense of transparency. More importantly, being remote, he felt he was on an equal footing with his Saudi counterpart.
While Mahmud and Sara have access to reliable internet connections and are tech-savvy, others are not. A migrant worker I spoke to told me he felt lost with all these changes. He added that “he does not understand technology well, and he cannot afford a smartphone and a data plan.” Certainly, the new system will be costly and prohibitive for some. Inadequate translation services in LOs also poses a significant hurdle to workers without a working command of Arabic or English.
Despite the existence of a justice system, deficient as it might be, hundreds of thousands of migrant workers are not benefitting from it. Some simply do not know about it. Some are afraid of retribution. Many think it is futile to try it while still others worry that their language, gender or race will pose an obstacle. Regardless of the reason, the fact that the majority of cases do not reach the justice system signals a failure on the part of the MHRSD and other relevant government agencies. If the mandate of the MHRSD calls for the creation of a safe and attractive labour market, it should ensure LOs are inclusive, equitable, accessible and culturally-sensitive spaces.
*All names changed to protect the identity of workers
(Image credit: Arab News)