Migrant Rights at Work

Law's precariousness at the intersection of immigration and labour

Laurie Berg

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317617808
• Edition: 1
• Topic: Law
• Subtopic: Immigration Law
• Index: Law

Public debates about the terms of membership and inclusion have intensified as developed economies increasingly rely on temporary migrant labour. While most agree that temporary migrant workers are entitled to the general protection of employment laws, temporary migrants have, by definition, restricted rights to residence, full social protections and often to occupational and geographic mobility. This book raises important ethical questions about the differential treatment of temporary and unauthorised migrant workers, and permanent residents, and where the line should be drawn between exploitation and legitimate employment.

Taking the regulatory reforms of Australia as a key case study, Laurie Berg explores how the influence of immigration law extends beyond its functions in regulating admission to and exclusion from a country. Berg examines the ways in which immigration law and enforcement reconfigure the relationships between migrant workers and employers, producing uncertain and coercive working conditions. In presenting an analytical approach to issues of temporary labour migration, the book develops a unique theoretical framework, contending that the concept of precariousness is a more fruitful way than equality or vulnerability to evaluate and address issues of temporary migrant labour.

The book will be of great interest to scholars and practitioners of immigration law and employment law and policy.

1 Migrant rights at work

Laurie Berg

DOI: 10.4324/9781315752327-1

Guo Jiandong died on 4 June 2007. He was 33 years old.¹ Felling cypress pine in a remote forest 700 km west of Brisbane, Australia, Guo was cutting a tree, which brushed a dead tree behind him and fell onto him, crushing his face into his chainsaw. ‘He was in the foetal position’, his workmate recalled. ‘He was backing away. He was still crouching when a dead tree hit him across the back’. The man who trained him claimed that Guo had never used a chainsaw before arriving in Queensland. The local paper carried a brief report on the death but did not record Guo’s name or his Chinese nationality. In the 18 months he spent in southwestern Queensland, he had only met a few locals who knew him just as ‘Go’ or ‘the Chinaman’.

¹ Details of this account of Guo’s death are drawn from: Matthew Moore, ‘A Lonely Death Among the Pines’, Sydney Morning Herald, 29 August 2007; Matthew Moore, ‘Timber Workers Face Deportation to a Bleak Future’, Sydney Morning Herald, 19 October 2007; Editorial, ‘The Passport to Misery’, Sydney Morning Herald, 22 October 2007.

Along with eleven other Mongolian men, Guo had borrowed around A$20,000 to pay agents in China to travel to Australia on a four-year subclass 457 Temporary Work (Skilled) visa, sponsored by their Australian employer. They worked up to 80 hours a week, and never fewer than 48 hours, for which they were paid roughly A$12 an hour (the national minimum wage at the time was A$13.47). They received no pay slips, and only found out how much they had been paid by checking their bank accounts. In spite of this, before Guo’s death, the group made no complaints, nor sought to change their circumstances. At that time, under the 457 visa scheme, an employee who stopped working for an employer-sponsor had just 28 days to find a new job and sponsor or leave Australia.² The possibilities of a non-English speaking Mongolian finding alternative employment in Queensland were few.

² This period was extended to 90 days in 2013 by Migration Amendment (Temporary Sponsored Visas) Act 2013 (Cth), sch 2 (457 Amendment Act 2013).

An investigation by the Department of Immigration and Citizenship (DIAC, as it was known between 2007 and 2013) found that the workers’ employer, NK Collins Industries Pty Ltd, failed to comply with its sponsorship requirements. On 18 September 2007, DIAC cancelled NK Collins’ sponsorship and barred it from sponsoring further workers for three years, on the basis that tree felling lies outside the scope of the occupations that had been nominated for the workers (wood machinists rather than tree fallers) in breach of their visa conditions.³ DIAC also found breaches in relation to underpayment of the specified salary. As a result, eighteen other Mongolian timber workers faced financial ruin and removal to China because their visas depended on this ongoing sponsorship. The Migration Review Tribunal overturned the sanctions against the employer finding that the evidence did not support DIAC’s findings.⁴ On 21 September 2009, NK Collins was found criminally liable for failing to discharge its workplace health and safety obligations in relation to Guo, although in 2013 the Queensland Court of Appeal allowed an appeal against this conviction on the basis that the charges had not fully particularised the breaches.⁵ The company went into receivership before the matter was reheard. While NK Collins was required to contribute to a superannuation account held in Guo’s name, it is not known whether Guo’s wife in Inner Mongolia received the death benefit to which she was entitled.

³ 071776514 [2007] MRTA 809, [24]. 457 visa-holders must not work in a position inconsistent with that for which the visa was granted: Migration Regulations 1994 (Cth), condition 8107(1)(b). ⁴ 071776514 [2007] MRTA 809. ⁵ See NK Collins Industries Pty Ltd and Peter Vincent Twigg (C/2009/56) Industrial Court of Queensland, 27 April 2010; NK Collins Industries Pty Ltd v. President of the Industrial Court of Queensland [2010] QSC 373; NK Collins Industries Pty Ltd and Peter Vincent Twigg (C/2009/56) (No 2) Industrial Court of Queensland, 22 March 2011; NK Collins Industries Pty Ltd v. President of the Industrial Court of Queensland [2012] QSC 147; NK Collins Industries Pty Ltd v. The President of the Industrial Court of Queensland [2013] QCA 179.

Guo’s treatment lies at the extreme end of migrant worker abuse. There are approximately 232 million foreign-born workers in the world, an increase of 57 million since 2000. Of these, 60 million are in high-income countries: an average of 12 per cent of their labour forces.⁶ The share of foreign-born workers in traditional immigration countries such as Australia, Canada and New Zealand is even higher. Guo’s death speaks of the structural violence that can shape the lives of a significant subset of these migrants: those working on temporary visas or no visa at all.

⁶ International Labour Organization, Towards a Fair Deal for Migrant Workers in the Global Economy (International Labour Conference, 92nd sess, Geneva, Report VI).

His story illustrates a central dilemma identified by Castles and Miller on which temporary labour migration schemes are built: maintaining the well-being of a resident population that is economically productive but lacks political representation and access to all of the social and economic benefits enjoyed by full members.⁷ By adding temporary workers to the labour force without adding permanent residents to the population, temporary labour migration schemes disaggregate membership of a national labour market from membership in a national political community. Defying a view of the world as divided into neat and territorially bound national states exercising sovereignty over their clearly demarcated and homogeneous populations, the vulnerabilities that attend migrant labour illuminate broader dilemmas related to justice in a simultaneously globalised and bordered world.

⁷ Stephen Castles and Mark Miller, The Age of Migration: International Population Movements in the Modern World (Palgrave-Macmillan and Guilford Books, 2009), 206.

In most liberal democratic countries, permanent residents are typically granted almost all the rights of citizens with the most frequent and significant exception being the right to vote and absolute protection against deportation. While most agree that temporary migrant workers are entitled to the general protection of employment laws that apply to every other worker, temporary immigration programmes by definition necessitate the restriction of rights to residence, occupational and geographic mobility, and full social protections. So where precisely should the differences between temporary and permanent residents lie? What further restrictions should apply to migrants who lack immigration authorisation altogether? Where should the line be drawn between exploitation and legitimate employment? What role, if any, should migrants themselves play in shaping these standards? These questions, the focus of this book, touch on deeply held beliefs about how a national community should be defined and to whom domestic legal protection should extend.

Unfortunately, clear antidotes are not readily apparent. International law espouses the principle of equality of treatment for foreign and domestic workers. However, no industrialised country has ratified the United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the human rights treaty that most explicitly and specifically articulates the protections for migrant workers.⁸ Developed nations are also reluctant to ratify International Labour Organization conventions promoting protections for migrant workers, which articulate safeguards for social rights for migrants.⁹ In any event, international human rights law arguably takes a highly ambivalent approach to migrant workers: embracing the principle of equality while also deferring to the sovereign discretion of states to set criteria for immigration admissions and provide for a range of different immigration statuses which correspond to differentiated rights.¹⁰ Yet these questions are urgent as global migration becomes increasingly temporary and oriented towards labour market needs.

⁸ International Convention on Protection of the Rights of All Migrant Workers and Members of their Families, adopted by GA Res 45/158, UN GAOR, 45th sess, UN Doc A/RES/45/158, 18 December 1990 (entered into force 1 July 2003). ⁹ E.g. Migrant Workers (Supplementary Provisions) Convention, 1975 (ILO No 143) opened for signature 24 June 1975, 1120 UNTS 323 (entered into force 9 December 1978). ¹⁰ Laurie Berg, ‘At the Border and Between the Cracks: The Precarious Position of Irregular Migrant Workers under International Law’ (2007) 8 Melbourne Journal of International Law 1, 18.

International trend towards temporary labour migration

National immigration policies have always been strongly shaped by each country’s legal and cultural context and their unique history of immigration. Still, there is a convergence internationally toward temporary labour migration policies, although thoroughgoing comparative research into migration law and policy is only just beginning.¹¹ Governments increasingly present such schemes as a ‘win-win-win’ for migrants, employers and the national economy.¹²

¹¹ See e.g. Philip Martin, Manolo Abella and Christiane Kuptsch, Managing Labor Migration in the Twenty-First Century (Yale University Press, 2006); Martin Ruhs and Philip Martin, ‘Numbers vs Rights: Trade-offs and Guestworker Programs’ (2008) 42(1) International Migration Review 249; Stephen Castles, ‘Guestworkers in Europe: A Resurrection?’ (2006) 40(4) International Migration Review 741. The IMPALA (International Migration Policy and Law Analysis) project seeks to measure immigration policies in twenty countries: http://projects.iq.harvard.edu/impala/home. ¹² Catherine Dauvergne and Sarah Marsden, ‘The Ideology of Temporary Labour Migration in the Post-Global Era’ (2014) 18(2) Citizenship Studies 224.

This has involved a significant shift, in English-speaking developed countries, away from family migration and humanitarian entrants towards skilled migration. The skill stream of permanent residency in Australia represented 65 per cent of the migration programme in 2004–5 compared with 34 per cent in 1997–8.¹³ In the 1990s, when the North American Free Trade Agreement facilitated the outflow of many skilled Canadians to work in the United States (USA), Canada sought to fill skills shortages and develop the ‘knowledge-based economy’ by actively recruiting skilled professionals from Asia through a points system to select immigrants established in the 1960s.¹⁴ Like Australia, skilled admissions comprised 63 per cent of new Canadian residents in 2011.¹⁵ When Britain reformed its policy for admitting migrants from outside the European Economic Area (which includes the European Union and Iceland, Lichtenstein and Norway) in 2008, it reduced 80 admission streams to five major tiers, three of which relate directly to labour migration. The USA is the noticeable outlier here with a vast majority of the permanent residency ‘green cards’ granted still related to family reunion, a trend that is probably best understood in the context of stalled immigration reform in that country.

¹³ DIAC, Population Flows: Immigration Aspects 2005–06 (Cth of Australia, 2007), 6. ¹⁴ Canadian Minister for Public Works and Government Services, ‘Building a Strong Foundation for the 21st Century’ (1998), 10. ¹⁵ Organisation for Economic Co-operation and Development, Immigration Outlook 2013 (2013), 240.

Giving precedence to labour-related entrants in these high-income countries has been accompanied by a shift toward temporary migration, allowing local employers to recruit and employ foreign workers, even among those countries that have traditionally encouraged only permanent immigration. In Canada the number of temporary workers increased threefold between 2002 and 2011 from about 101,000 to 300,000, many of which were in low-skilled jobs under specific schemes for seasonal agricultural workers and domestic care workers.¹⁶ In New Zealand, temporary skilled entrants outnumbered permanent skilled entrants between 2004 and 2009, with 83 per cent of those selected for permanent skilled migration in 2006 coming from onshore.¹⁷ In Australia, net arrivals of long-term temporary overseas entrants have exceeded net permanent migration since 1998–9.¹⁸ The USA has relied on temporary work permits for far longer, driven mostly by employer sponsorship, with more than 20 non-immigrant programmes that permit foreigners to enter and work. Even so, in the USA, the number of new temporary workers entering on schemes such as the H-1B temporary skilled visa increased from around 50,000 annually at the beginning of the 1990s to 136,890 in 2010.¹⁹ Issues relating to the precarious working conditions of temporary migrant workers, therefore, have great salience internationally.

¹⁶ Institute for Research on Public Policy, Roundtable on Temporary Migration and the Canadian Labour Market (University of Ottawa, 30 April 2012). ¹⁷ Lesleyanne Hawthorne, Competing fo...