B. The Structure of Qatar’s Labor Dispute System

While problems with enforcement have been widely noted, there has been little analysis of the structure and operation of Qatar’s labor enforcement mechanisms.Footnote ¹⁷ These challenges do not arise from the lack of a dispute system; new dispute resolution procedures and institutions were an important part of Qatar’s labor reforms. The challenges arise from the structure of this system and its suitability for the needs of the target community.

The main features of Qatar’s dispute system are set forth in Law No. 13 of 2017 and the Council of Ministers’ Decision No. 6 of 2018.Footnote ¹⁸ These laws established a bipartite dispute resolution process for labor disputes. First, in the event that a dispute related to labor law arises between a worker and an employer, the dispute shall be referred to the Labor Relations Department of the Ministry of Labor in order “to settle the dispute amicably.”Footnote ¹⁹ Although the particulars of this “amicable” dispute resolution process are not detailed in Law No. 13 or subsequent regulations, it refers to engaging in mandatory mediation. Under this process, the employer and employee engage in mediation facilitated by a neutral person from the Ministry of Labor to seek a negotiated solution to the dispute. If an agreement between the parties is reached, the complaint shall be considered settled, and the resulting agreement shall have “executory force” and be legally binding on the parties.

If the dispute is not settled through mediation within the defined period, it can proceed to a more formal legal process. For this purpose, Qatar established three Labor Dispute Settlement Committees (LDSCs) with jurisdiction to resolve all individual disputes arising from labor law and labor contracts.Footnote ²⁰

The LDSCs, which began operation in 2018, have jurisdiction to hear disputes related to issues such as recruitment, terms and conditions of employment, working hours, job duties, wage discrepancies, unpaid wages, and overtime pay. The Council of Ministers Decision No. 6 of 2018 provides for the establishment of the LDSCs, which are to meet in public thrice weekly. It also establishes procedural rules, such as the authority of an LDSC to hear or request evidence, consolidate cases of a similar subject matter, and dismiss cases when a party is not present. Each LDSC is chaired by a judge appointed by the Supreme Judicial Council and members of the Ministry of Administrative Development, Labor and Social Affairs. To facilitate accessibility, LDSCs have been set up at several locations in Qatar, including in the industrial area where the vast majority of migrant workers reside.Footnote ²¹

Although the Ministry of Labor has begun to publish monthly reports, data on the operation of the labor dispute system is difficult to come by. Nevertheless, based on reported numbers, there is reason to believe the new system is having some positive effects. For instance, it is reported that 67% of complaints filed at the Ministry of Labor between October 2021 and October 2022 were settled before or during the mediation stage. The remaining disputes, if not dismissed, were referred to an LDSC. In 84% of these cases, the labor courts ruled in favor of workers.Footnote ²² The most recently available data for August 2023 indicates that 2,720 labor complaints were filed, of which 863 were settled and 23 were referred to the labor courts.Footnote ²³

The Ministry of Labor’s online platform for submission of worker complaints received 34,425 filings between October 2021 and October 2022. This would seem to indicate that the system is addressing previously unmet needs among migrant workers.Footnote ²⁴ Moreover, based on this limited statistical information, the dispute system is settling a high rate of cases through mediation while providing an adjudicative process for claims that are not settled. However, these numbers fail to tell the whole story. While the dispute settlement system instituted by Law No. 13 of 2017 has brought about some improvements, it continues to suffer from foundational defects that limit its ability to enforce workers’ legal and contractual rights. These problems are both operational and structural in origin.

Many of the challenges that Qatar is confronting are mirrored elsewhere. An extensive body of scholarship details the “barriers migrant workers face in accessing justice,” including difficulties in making legal claims and enforcing legal remedies.Footnote ²⁵ Access to justice for migrant workers is a global problem that can be just as prevalent in liberal democracies as in Gulf monarchies. For instance, Bethany Hastie analyzed “the gap between rights on paper and in practice for migrant workers” in Canada.Footnote ²⁶ Catherine Barnard and Sarah Fraser Butlin have analyzed the “enforcement gap” confronting migrant workers in the EU, for whom “access to justice remains a rather thin, formalist concept.”Footnote ²⁷ Other studies have documented the issue in Australia.Footnote ²⁸

The root causes are similar: lack of knowledge about rights and remedies, lack of legal and financial assistance, language barriers, power dynamics in the workplace that discourage workers from initiating claims, the belief that success before courts and tribunals is unlikely, insecurity arising from fear of job loss and visa sponsorship, and employment in the informal sector. Qatar is not unique in these respects, although the depth, expanse, and visibility of the problems are endemic to its labor system in a way not found in other countries. This makes the challenge even greater in some ways, particularly given the entrenched interests at stake. But the reality is unavoidable: migrant workers are not hidden from view as in other contexts; they have been the public face of Qatar’s labor reform initiatives for a decade.

C. The Effectiveness of Qatar’s Labor Dispute System

The effectiveness of a dispute resolution system can be measured along several axes. Effectiveness concerns a system’s ability to enforce legal and contractual rights. Obstacles might come from corruption, insufficient investigatory resources, or poorly drafted or interpreted laws. They can also arise from problems with the accessibility, affordability, and efficiency of dispute mechanisms. Effectiveness also concerns the system’s effect on the overall dispute resolution environment, the ability of a dispute system to prompt deeper changes in established workplace practices, or the legitimacy of the system among stakeholders.Footnote ²⁹

Some aspects of Qatar’s dispute system aim to be flexible and forward-looking. Most importantly, the system adopts processes that go beyond reliance on litigation in civil courts. Qatar's dispute system adopts practices other systems have successfully employed by utilizing a two-step dispute process that begins with mandatory mediation and then moves to specialized labor tribunals. Yet, innovation in design has not meant effectiveness in operation.

Data provided by the Ministry of Labor indicates that the use of mediation has increased the resolution of labor disputes. However, closer examination reveals a number of problems. For one, despite the high reported settlement rate, there is little understanding of the mediation process. There are no published guidelines or procedures. Workers are likely unfamiliar with formal mediation and might not understand their rights when entering the process. No code of ethics addresses confidentiality, conflicts of interest, and neutrality, which are established principles for mediation. This is particularly concerning in light of questions about whether labor mediators are acting as third-party neutrals facilitating a consensual resolution or more like judges who assume a role in shaping outcomes.Footnote ³⁰ Under such conditions, a high settlement rate does not mean the system produces consensual outcomes that are just.

These issues are all the more significant given the manifest imbalance of power that defines mediation between employers and migrant workers. The imbalance of power often native to labor and employment mediations is magnified in Qatar by the circumstances confronting workers. Easily overlooked considerations, such as transportation costs to the mediation or the ability to obtain leave from work, present immense difficulties. Workers might not have the time or resources to engage in an extended or multi-stage dispute resolution process; problems with timeliness and enforcement are also rife. The mediation is supposed to take place within seven days of the filing of a complaint, though the wait is often much longer. This is no mere bureaucratic inconvenience; it can leave workers who are owed back wages unable to remain in Qatar long enough to see the process through to its conclusion. Moreover, getting the employer to pay is difficult, even if a settlement is reached. A settlement agreement arising from mediation at the Ministry of Labor is defined as having executory force, yet no mechanism exists to compel an employer to fulfill their legal obligations short of pursuing an action for breach of contract. Navigating the labyrinthine domestic court system is beyond the reach, resources, and capacity of many laborers, who, typically, are in no position to hire local counsel and bring an enforcement action. As such, employers can wait out employees with little consequence if they choose to do so.

Mediation has been widely adopted in dealing with labor and employment disputes across a range of contexts.Footnote ³¹ Its appeal is obvious. Mediation is fast, low-cost, easy to use, and effective at producing settlements.Footnote ³² At the same time, there are critiques of using mediation in labor disputes. These include concerns about the mediator engaging in arm-twisting to generate a settlement and the unequal negotiating power between the employee and the employer.Footnote ³³ There are also concerns that mediation interferes with employees pursuing rights through adjudication, who may receive less compensation from mediation than litigation. Along these lines, it has been argued that the use of mediation in Turkey has disenfranchised workers and that its use in China marks a retreat from the rule of law.Footnote ³⁴

These are important considerations, but there is also substantial evidence that mediation of employment disputes can generate high settlement rates, leaving both parties satisfied with the process and the outcome.Footnote ³⁵ A study of mandatory employment mediation within the United States Postal Service, a large unionized employer, found that the system “furthers goals of justice at the workplace while preserving worker access to traditional remedies and producing substantial benefits in efficiency of dispute processing for employer and employee alike.”Footnote ³⁶ A review of Canada’s Federal Mediation and Conciliation Service found that it “plays a significant role in helping employer and union organizations resolve collective bargaining disputes.”Footnote ³⁷ Of course, the potential utility of mediation depends to a large extent on its design, its context, and its place within a larger dispute resolution framework.Footnote ³⁸ It is difficult to generalize about its benefits and limitations without considering a range of other factors. Do workers feel they are being treated fairly and maintaining a sense of self-determination? Is mediation mandatory or voluntary? Does a court supervise mediation? Is it part of a collective bargaining agreement or government program? What remedies exist when mediation fails to produce an agreement? Does the worker have legal representation (and does the employer)? These are among the many issues that shape the role and success of mediation, which might make it more or less suitable.

Qatar’s use of labor mediation is potentially transformative and accords with its recent turn to mediation, issuing its first mediation law in 2021.Footnote ³⁹ Mediation may be well-suited to the needs of migrant workers in that it offers an informal, low-cost, and expeditious process that does not require legal representation. It could go a long way toward providing an accessible means for workers to resolve disputes. However, the system does not currently ensure that workers experience a fair and neutral process that produces consensual outcomes. Some of these problems can be remedied through better operation of the system, but, more importantly, there are deep structural problems concerning imbalances of power and the way mediation is conducted. If mediation is to be employed ethically and appropriately as part of Qatar’s dispute system, these foundational issues need to be addressed. Mediation cannot be used as a means to dispose of complaints while leaving workers with less than what is due to them.

Many of the points raised about mediation could equally be said about the LDSCs, where workers must pursue a remedy in the event that mediation fails. Human Rights Watch and Amnesty International interviewed workers in Qatar and found a host of problems with the LDSC system.Footnote ⁴⁰ The same timeliness issues that afflict the mediation process arise at the labor courts. Although LDSCs are required to hold a hearing within three to seven days of the matter being transferred, workers typically wait months.Footnote ⁴¹ There are also problems with enforcing judgments. Many workers receive judgments in their favor that they can never collect. It is not uncommon for employers to avoid payment obligations by shutting down a company and opening up their business under a new name. There is also the problem of retributive actions, including filing absconding claims. There are no protections in Qatar’s law for retaliation; workers even fear filing complaints. Other observed problems include understaffing, travel costs, lack of pro bono legal assistance, and the failure of employers to participate in the process. In the end, some workers have opted not to pursue redress through the dispute system because they fear they do not have sufficient documentation to make a case, losing salary and benefits, or even being deported. Others abandoned their claims and left the country.

A range of operational improvements could make LDSCs more effective. These include increasing the number of committees to resolve cases more quickly; providing expedited compensation through the Workers’ Support and Insurance Fund when a company does not pay a judgment; establishing a pro bono legal aid system; providing relief funds and transport costs to help workers who do not receive salaries during the dispute process; and penalizing companies that fail to participate in proceedings or respect judgments.Footnote ⁴² Incremental improvements such as these typically receive the most attention among commentators.Footnote ⁴³ The larger question is whether specialized labor tribunals of this sort, which have been utilized effectively worldwide for decades, are suited to the particular dynamics facing workers in Qatar.Footnote ⁴⁴

Extensive literature examines different labor dispute mechanisms, especially their relative advantages of arbitration and litigation. It is difficult to draw general conclusions about the benefits of these different options, given variations among legal systems and the social and economic circumstances that bear on their functionality. Nevertheless, it is possible to derive some insights to inform the evaluation of Qatar’s dispute system.

Arbitration of labor disputes can be more efficient, accessible, and less expensive than litigation, but these benefits might come at the expense of worker’s rights. Referring to labor arbitration in the United States, one study observes, “[C]ritics see an employee unfriendly forum characterized by inadequate due process and inferior employee remedies.”Footnote ⁴⁵ Studies have also found that workers might win less frequently, receive lower payouts from arbitral tribunals than traditional courts, and have more difficulty obtaining legal representation.Footnote ⁴⁶ Moreover, when employers mandatorily impose arbitration, it changes the bargaining power between workers and employers by disrupting “existing mechanisms for enforcement of individual employment rights.”Footnote ⁴⁷ There is no indication that arbitral mechanisms were considered for use in Qatar’s labor dispute system, but it would not have been the optimal option to build a system around. Although less structured than traditional litigation and bringing certain efficiencies, arbitration is still a formal process that challenges workers.

There is another reason to favor court-based adjudication that might be particularly apt in Qatar. Unlike arbitration, courts can enforce labor rights as a matter of public justice. Courts can, in the words of Guy Davidov and Edo Eshett, “send a message” in a way that arbitral tribunals cannot.Footnote ⁴⁸ Such messaging would improve compliance by giving expression, both in substance and symbol, to the normative force of law. Whether courts can have this effect depends on a range of factors, including whether the law is predictably and consistently applied, opinions are published, and the judicial system follows precedent.Footnote ⁴⁹ Even if courts in Qatar are ill-situated to serve such a role at this time, it is important to preserve the connection between labor rights and shared public goods. Justice encompasses not only backward-looking remedies for past harm but forward-looking deterrence.

The use of litigation in labor disputes is subject to many challenges. A recent ILO report cites, among others, cost concerns, case delays, a lack of independence and impartiality, complicated and formalistic procedures, limited access, and ineffective remedies.Footnote ⁵⁰ All of these problems are endemic to Qatar’s domestic courts, which conduct proceedings in Arabic, do not provide consistent translation services, do not publish many decisions, have opaque and difficult-to-navigate procedures, and have generated concerns about judicial independence and impartiality, given that most judges are foreigners who lack job and residency security.Footnote ⁵¹ By establishing specialized labor tribunals, Qatar has preserved access to a public adjudicative remedy while potentially bypassing some of the problems that plague the country’s ordinary domestic courts. Viewed from this perspective, the LDSC system is an initiative worth preserving and reforming rather than jettisoning.Footnote ⁵² Significant changes are needed, but the same might be said of all facets of Qatar’s dispute resolution system.

D. Dispute System Design and the Path Forward

Qatar’s dispute settlement system has the potential to be effective. Although workers struggle with enforcement, the bipartite system encompassing mediation and labor courts provides the foundations for an effective dispute settlement regime. Nothing about the circumstances in Qatar renders mediation and labor courts inapt. Indeed, there are reasons to believe these mechanisms are well-suited to the country's workers' circumstances. The challenge facing Qatar is not to recreate the dispute system established in 2017 but to reform and refashion it.

The deficits in Qatar’s dispute system reflect its lack of attention to the unique power imbalances that define the employer-employee relationship. The vulnerable status of migrant workers is hardly unique to Qatar. Studies of diverse legal systems have documented the challenges of enforcing labor rights among this population. The difference is that migrant workers are not a discrete and insular minority in Qatar; they are the preponderant labor force, and the dispute system was explicitly designed to further their legal interests. Yet, in so doing, the needs of the key interest holder were not adequately considered—Qatar’s dispute system is not fashioned in a way that meets the needs of workers and addresses their vulnerabilities.

In their Article, “An Analytic Framework for Dispute System Design,” Stephanie Smith and Janet Martinez argue that an effective dispute system must, among other features, identify the stakeholders and their relative power in designing the system.Footnote ⁵³ “[D]ysfunction” in dispute systems, they propose, “can often be attributed to failure to adequately involve and acknowledge the interests of key stakeholder groups.”Footnote ⁵⁴ The problem in Qatar is not that mediation cannot work. It is that the mediation process is structured in a way that leaves workers potentially subject to manipulation and unfair outcomes. A worker denied lawful payment of wages should not be pressured into accepting less than what is owed because of exigent financial circumstances, fear of employer retaliation, or lack of confidence in pursuing an alternative adjudicative remedy. Likewise, labor courts cannot undermine their intended purposes through undue delays in holding hearings, lack of access to legal support and translation services, and problems enforcing judgments. Workers should not be forced to drop claims because circumstances compel them to leave the country. These problems can be addressed, but it is a matter of political will and system design creativity more than anything else.

For a country with deeply embedded labor practices, the scope and rapidity of reform have been notable.Footnote ⁵⁵ Qatar represents a rare success story in leveraging a mega sports event to promote human rights and domestic policy change. The reforms Qatar enacted between 2015 and 2020 were almost certainly greater than those of any other host country. Legislative gaps remain, but, as Andy Spalding observes, the fact that more work needs to be done is a good problem so long as Qatar remains committed to ongoing work in this area.Footnote ⁵⁶ However, the fear is that Qatar will lose its commitment to continued reform now that it is out of the international spotlight.

One year after the World Cup, the same enforcement problems remain, while political energy around the labor issue has faded. An Amnesty International report (November 2023) states that “huge problems persist and navigating the [dispute settlement] system remains a lengthy and challenging process for migrant workers who continue to find employers maintaining the upper hand.” Cases before LDSCs can drag on for up to a year. The Ministry of Labor continues to release data indicating that a large percentage of complaints are “settled in mediation” but does not detail what this means nor how settlement terms compare to original claims. Many workers are still compelled to accept less than what is due or to forego remedies altogether.Footnote ⁵⁷

Qatar’s dispute settlement system has brought about some improvements for workers, but justice is still commonly delayed and denied. The system could offer the foundation for an effective enforcement regime, but this will only happen if Qatar pushes forward with designing a regime suited to the needs and circumstances of its migrant workers. Mediation can be an important part of such a system, but it must facilitate rather than frustrate outcomes that are just. Labor courts can likewise be an important part, but they must provide rights-based remedies that are accessible, timely, and enforceable. These mechanisms have operated effectively in other legal systems, and there is no reason why they cannot operate effectively in Qatar if there is appropriate determination.